Siana v Magut (Environment and Land Case 281 of 2016) [2026] KEELC 4067 (KLR) (2 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT ELDORET** **ELC No. 281 OF 2016** **STEPHEN KIPSANG SIANA** …………………………………….. **PLAINTIFF** **VERSUS** **MESHACK KIPKOSGEI MAGUT** ……………………………. **DEFENDANT** **RULING:** 1. The Plaintiff herein filed the present application by way of Notice of Motion dated 2nd February, 2026 seeking for orders that:- 2. Spent 3. The suit against the Defendant Meshack Kipkosgei be revived. 4. Upon revival of the suit the Deceased’s widow and Administrator of the Estate of **MESHACK KIPKOSGEI MAGUT**, **SARAH MAGUT** be substituted to this suit as a Defendant. 5. Costs of this Application be provided for. 6. The application is premised on the grounds set out on the face of the Motion and supported by the Plaintiff’s Affidavit sworn on the same date. It is the Plaintiff’s case that he filed suit against the Defendant, Meshack Kipkosgei Magut, who is now deceased. The Plaintiff depones that judgment was entered against the deceased Defendant, who made part payment but left an outstanding balance of KShs. 717,798/40-. The Plaintiff further claims that the Deceased Defendant died before warrants of arrest could be executed. 7. The Plaintiff avers that following the demise of the said Meshack Kipkosgei Magut, the suit against him abated. That it is necessary that the same be revived for purposes of executing for the balance. The Plaintiff depones that the Deceased’s wife, Sarah Magut obtained a Grant of Letters of Administration in Kabiyet Succession Cause No. E089 of 2024. The Plaintiff urges that it is necessary that the Administrator be enjoined to the suit as a Defendant on behalf of the Deceased’s estate to facilitate recovery of the balance of the Decretal sum. 8. The present application was served on the firm of Isiaho Sawe which firm has, throughout the suit, been and still is on record for the Defendant herein. An Affidavit of Service was sworn by Zablon O. Bikeri, a licensed Court Process Server, on 4th February, 2026 to that effect. Despite service as aforesaid, no response was filed on behalf of the Defendant/Respondent. 9. On 28th April, 2026 when this matter was mentioned, Counsel for the Plaintiff/Applicant informed the court that the firm of Isiaho Sawe had accepted Service but stated that they had no instructions as the Defendant is deceased. Counsel asked the court to consider the Application and Supporting Affidavit and render its determination. **Analysis and Determination:** 1. I have considered the Application and the Affidavit filed in support thereto. There are two issues that commend themselves for determination by this court, to wit:- 2. *Whether there is sufficient reason to revive the suit and substitute Sarah Magut in place of the deceased Defendant; and* 3. *Who shall bear the costs of this application?* 4. **Whether there is sufficient reason to revive the suit and substitute Sarah Magut in place of the deceased Defendant** 5. From the facts of the case the deceased Defendant in the suit died in the year 2017. The relevant law as regards the effect of death of one of several Defendants or of a sole Defendant is Order 24 Rule 4 of the Civil Procedure Rules which states as follows: ***4. Procedure in case of death of one of several defendants or of sole defendant [Order 24, rule 4]*** ***(1) Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.*** ***(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.*** ***(3) Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant.*** 1. It is clear from the above provision that a suit abates by operation of the law when no substitution is made within one year on the death of a Defendant. The provisions of Order 24 Rule 4 of the Civil Procedure Rules are couched in mandatory terms, in that where no application is made to substitute, then the suit abates as against the deceased defendant. 2. The legal provision that deals with revival of an abated suit is found under Order 24 Rule 7(2) of the Civil Procedure Rules which provides:- ***7. Effect of abatement or dismissal [Order 24, rule 7]*** ***(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.*** ***(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the trustee or official receiver in the case of a bankrupt plaintiff may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit.*** 1. Order 24 Rule 7(2) of the Civil Procedure Rules gives the court discretion to revive an abated suit if there is sufficient proof that the Applicant was prevented by any sufficient cause from continuing the suit. As to the considerations to be had when determining an application for reviving an abated suit, in ***Rebecca Mijide Mungole & Another vs Kenya Power & Lighting Company Ltd & 2 Others (2017) KECA 544 (KLR)***, the Court of Appeal held that:- ***“Where a suit abates, no fresh suit can be brought on the same cause of action because it is extinguished and cannot be maintained in the form it was originally presented. Because the suit will only abate where, within one year of the death of the plaintiff no application is made to cause the legal representative of the deceased plaintiff to be joined in the proceedings, it is imperative and we may add, logical, where the legal representative is not so joined within one year, that an application be made for extension of time to apply for joinder of the deceased plaintiff’s legal representative. It is only after the time has been extended that the legal representative can have capacity to apply to be made a party. Order 24 must be construed by reading it as a whole and the sequence in which it is framed must be followed without short circuiting it. The proviso to rule 3(2) to the effect that the court may, for good reason on application, extend the time goes to show that without time being extended, no application for revival or joinder can be made. It is the effluxion of time that causes the suit to abate. It is that time that must, first be extended. Once time has been enlarged, only then can the legal representative bring an application to be joined in the proceedings. Again it is only after the legal representative has been joined as a party that he can apply for the revival of the action. In our view there is nothing objectionable to making an omnibus application for all the three prayers. But it is incompetent to seek joinder or revival when the prayer for more time to apply has not been granted. The learned Judge, supported by the authority of Joseph Gachuhi Muthanji (supra) was therefore right in dealing with that aspect of the application in the manner he did.*** ***After time to apply has been enlarged and the legal representative has been joined, the focus and burden shifts to him to show cause why the abated suit should be revived. A prayer for the revival of the suit cannot be allowed as a matter of course or right. If the applicant demonstrates and the court is satisfied that he was prevented by any sufficient cause from continuing the suit, the court will allow the revival of the suit upon such terms as to costs or otherwise as the court may think fit. The operating phrase in rule 7(2) “sufficient cause” has been broadly and liberally defined, in order to advance substantial justice. Liberal construction should not be done with the result that one party is thereby prejudiced. When the delay is on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the applicant, the court will not revive the abated suit. If a party has been negligent or indifferent in pursuing his rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to him in law. The explanation has to be reasonable and plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but justifies exercising judicial discretion in favour of the applicant.”*** 1. However, the requirement for extension of time before revival of suit is only with regards to Order 24 Rule 3 which deals with the abatement of a Plaintiff’s case. In the case of ***Rebecca Mijide Mangole (Supra)***, the application for revival of suit was brought under Order 24 Rule 3 as it dealt with the abatement of the Plaintiff’s case. Therefore, the said case can be distinguished from this instant application which seeks the revival of a Defendant’s case. Order 24 Rule 4 does not require that an applicant first seek to extend time before filing an application to revive a case where a sole Defendant passed away. 2. The question therefore is whether the Plaintiff has demonstrated that he was prevented by a sufficient cause from continuing the suit. Sufficient cause was defined by the Court of Appeal in the case of ***The Hon. Attorney General vs the Law Society of Kenya & Another Civil Appeal (Application) No. 133 of 2011***, where it was held that:- ***“Sufficient cause or good cause in law means:-*** ***The burden placed on a litigant (usually by court rule or order) to show why a request should be granted or an action excused. See Black’s Law Dictionary, 9th Edition, page 251. Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubt in a Judges mind. The explanation should not leave unexplained gaps in the sequence of events.”*** 1. The party seeking substitution first needs to establish that a personal representative has been appointed in the estate of the deceased Defendant. For purposes of Order 24 of the CPR, the personal representative of the deceased defendant is the one appointed in accordance with the Law of Succession Act. Thereafter, the Applicant needs to satisfy the court that there was sufficient cause for not continuing with the suit. 2. From my reading of the present application, it is evident that the Plaintiff has not given any explanation for not filing the Application for substitution within the stipulated time. I have looked at the Grant issued in Kabiyet Succession Cause No. E089 of 2024 and note that it shows that the Defendant passed away on 18th December, 2017. By operation of law, suit with regards to the Defendant abated on 17th December, 2019. However, it is not clear whether the court was notified of the Defendant’s demise on time or whether the Plaintiff was aware of it. 3. There is however every possibility that neither this court nor the Plaintiff were notified of the Defendant’s demise. I note from the record of the proceedings that this suit remained active after the death of the original Defendant, and has come up in court severally having been last in court on 5th April, 2023. 4. From the decree extracted on 6th August, 2019 it is clear that the matter was concluded by way of a consent recorded on 30th July, 2019. The Plaintiff has employed various means to execute the judgment. The Plaintiff’s first attempt at execution was through the warrant for execution filed in court on 5th February, 2020. Thereafter, a Notice to show cause was issued against the deceased Defendant on 6th February, 2020 seeking payment of the amount of KShs. 1,346,298.40. Another Notice to Show cause was issued on 25th March, 2021 still with respect to the aforementioned amount. 5. Come 20th December, 2021 another Notice to show Cause was issued against the Defendant still pursuing payment of KShs. 1,346,298.40. The Plaintiff then went ahead and obtained Warrants of Execution dated 21st July, 2022, but was now seeking a sum of KShs. 1,147,798.40, meaning that some amount must have been paid. This was followed by another Notice to Show Cause issued against the Defendant on 31st January, 2023 but now pursuing a balance of KShs. 697,798.40. Again, some amount of money must have been paid to the Plaintiff to significantly reduce the outstanding balance. 6. The Plaintiff then moved on to procure the issuance of a Notice to Show Cause issued against the Defendant on 2nd March, 2023 in which he was still pursuing payment of KShs. 697,798.40. When the matter was last mentioned in court on 13th April, 2023 the court directed that Warrants of Execution do issue against the Defendant. Consequently, the said warrants were indeed issued on 14th April, 2023 claiming KShs. 717,798.40 as the outstanding balance on the decretal sum. 7. I have taken time to set out the chronology of events in the file since entry of the consent judgment, so as to make out clearly the discrepancy in the timelines herein. If indeed the Defendant died on 18th December, 2017 as indicated in the Grant annexed to the Applicant’s Affidavit, then it is unclear how a consent was entered on his behalf in the year 2019 in the first place, yet he was not alive to issue instructions. For this reason, it is clear that this court was never informed of the Defendant’s demise before this application, hence there is every possibility that the Plaintiff was unaware of the Defendant’s demise. 8. This is confirmed by the Plaintiff’s repeated attempts to execute the consent judgment. Furthermore, from the amounts outlined above, it is evident that the decretal amount kept reducing, meaning that part payments continued to be made on the decretal sum until they stopped in the year 2023, with no indication whatsoever as to who was making the said payments. 9. Under the circumstances of the prevailing situation, I feel the need to invoke the provisions of Sections 1A and 1B of the Civil Procedure Act Cap 21 Laws of Kenya where the court is enjoined to foster and facilitate the overriding objectives of the Act to render justice to parties in all Civil proceedings. Article 159(2) of the Constitution further underscores the role of the court in the administration of Justice. 10. Bearing the above provisions in mind, it is evident that if the information in the Grant of Letters of Administration is to be believed, it has taken the Plaintiff 9 years between the date the deceased died and the filing of the present application. While this delay is long and unexplained, noting the concerns raised above, it is clear that one of the parties herein has not been honest in their dealings with the court as regards the demise of the Defendant herein and the events that took place thereafter as concerns this suit. 11. Furthermore, the Estate of the deceased Defendant had no representative until 25th March, 2025 when his widow was appointed as the Administratrix of his estate in the Grant issued in Kabiyet Succession Cause No. E089 of 2024. Thus, even if the Plaintiff had wanted to apply for revival of the suit earlier, there would have been no one with whom the deceased Defendant could have been substituted with. 12. Consequently, I am satisfied that there is sufficient reason to allow the present Application and revive the Plaintiff’s suit as against the Defendant herein. Being the Administratrix of the Estate of her late husband, Meshack Kipkosgei Magut, Sarah Magut is the proper party to joined in place of the deceased Defendant by way of substitution. 13. **Who shall bear the costs of this application?** 14. On the question of costs, it is now settled that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21), which equally vests this court with discretion on whether or not to award costs. Therefore, a successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. 15. Ideally, the Estate of the deceased Defendant ought to have been the ones to seek substitution, but they did not. The Plaintiff was thus forced to file the present application seeking revival of the suit as well as substitution. The Plaintiff has argued his application successfully and convinced this court to allow the prayers sought. However, I also note that the application was not opposed. The Plaintiff is thus not entitled to the costs of this application. **Orders:-** 1. The upshot is that the Plaintiff/Applicant’s Notice of Motion dated 2nd February, 2026 is merited and is allowed as follows:- 2. The suit against the Defendant Meshack Kipkosgei is hereby revived. 3. The Deceased’s widow and Administrator of the Estate of **MESHACK KIPLOSGEI KIPKOSGEI MAGUT**, **SARAH MAGUT** be and is hereby substituted to this suit as a Defendant. 4. There shall be no order as to costs. 5. Orders accordingly. **DATED**, **SIGNED** and **DELIVERED** virtually at **ELDORET** on this **2ND** day of **JULY**, **2026** vide Microsoft Teams. **HON. C. K. YANO** **ELC, JUDGE** In the virtual presence of:- Mr. Mwinamo for Plaintiff. No appearance for Defendant. Court Assistant - Laban.