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Court of AppealAllowedNot stated in judgment

Waweru v Kariuki (Civil Appeal 288 of 2019) [2025] KECA 1810 (KLR)

Court of Appeal
7 November 2025
WKW. KaranjaJMJamila MohammedLKL. Kimaru
1,173 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a lawsuit with a final judgment cannot 'die' when a party passes away—successors can simply be substituted in.

What this practically means

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Executive summary

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This is a first appeal from a ruling of the Environment and Land Court (J.G. Kemei, J) delivered on 22nd July 2019, dismissing an application by Jackson Gichoya Waweru, suing as intended legal representative of the late Evanson Waweru Gichoya, to be substituted for the deceased defendant in a land dispute. The ELC had held that under Order 24 Rule 3(2) of the Civil Procedure Rules, revival of an abated suit was a prerequisite to substitution, and that substitution before revival was a nullity; it accordingly dismissed the substitution application in respect of Evanson, whose suit was said to have abated a year after his death on 5th January 2019. The Court of Appeal allowed the appeal. It held that the case was distinguishable because judgment had already been delivered on 26th February 2009 and had never been set aside, reviewed, or appealed against. The proper provision was Order 24 Rule 10, which expressly exempts execution proceedings from Rules 3, 4 and 7; reinforced by section 37(1) of the Civil Procedure Act permitting execution against the legal representative of a deceased judgment-debtor. The court relied on Indian authorities (V. Uthirapathi v Ashrab Ali; Venkatachalam v Ramaswami) and the Kenyan decision in Agnes Wanjiku Wang’ondu v Uchumi Supermarket Ltd, affirming that the penalty of abatement does not attach to post-judgment or execution proceedings. Revival was therefore unnecessary and substitution ought to have been allowed. The appeal was allowed with costs in both courts. The binding rule: once judgment is delivered, a suit does not abate on a party's death.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court correctly interpreted Order 24 Rule 10 of the Civil Procedure Rules

Key legal issues

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01

Whether Order 24 Rules 3 and 4 (abatement and revival) apply to post-judgment substitution applications

Holding

They do not. The proper provision is Order 24 Rule 10, which exempts execution proceedings from Rules 3, 4 and 7; judgment having been delivered, the suit could not abate and revival was a precondition the ELC wrongly imposed.

Reasoning

The court distinguished authority on abatement because in this case judgment had been delivered on 26th February 2009 and had never been set aside, reviewed or appealed against. It relied on Order 24 Rule 10, section 37(1) of the Civil Procedure Act, and comparative Indian and local jurisprudence holding that the penalty of abatement does not attach to execution or post-judgment proceedings.

p. 3

Legal principles established

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  • Once judgment has been delivered, a suit does not abate on the death of a party; substitution post-judgment falls under Order 24 Rule 10 of the Civil Procedure Rules and revival is unnecessary.

Court orders

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  1. 1.The appeal is allowed with costs both in this Court and in the ELC
  2. 2.The appellant's application for substitution dated 12th March 2019 effectively allowed (revival unnecessary, substitution ought to have been allowed)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

WK
majority
JM
majority
LK
majority
On appeal from
Environment and Land Court
Not stated in judgment
Jurisdiction invoked
First appellate jurisdiction over the Environment and Land Court (not expressly stated in the judgment)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The proper provision is therefore Order 24 Rule 10, which expressly exempts execution proceedings from the application of Rules 3, 4, and 7.
p. 3Order 24 Rule 10 governs post-judgment substitution
In the instant case, there was no requirement to revive the suit after Evanson’s death for purposes of substitution. The ELC therefore erred in finding otherwise.
p. 3Revival unnecessary post-judgment
The appeal is accordingly allowed with costs both in this Court and in the ELC.
p. 3Final orders

Issues in the judgment

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minor

Internal inconsistency in the dates of the impugned judgment: described variously as delivered on 26th February 2009 and 26th February 2008.

minor

The date of the Limited Grant Ad Litem obtained by the appellant appears inconsistent with the death date of Evanson (grant on 15th January 2018, death on 5th January 2018).

minor

The judgment records the ELC holding that 'since there was a pending application dated 21st January 2015, the judgment of 26th February 2008 remained enforceable', which is unclear and possibly refers to 2009.

minor

Judgment states the appellant sought substitution on 11th March 2019, whereas the application is dated 12th March 2019 (affidavits sworn 11th March 2019).

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Waweru v Kariuki (Civil Appeal 288 of 2019) [2025] KECA 1810 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1810/eng@2025-11-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.