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Court of AppealOtherCivil Appeal No E029 of 2024· [2026] KECA 1152 (KLR)

Muriithi & another v Mureithi & another (Civil Appeal E029 of 2024) [2026] KECA 1152 (KLR)

High Court of Kenya (Environment and Land Court, Nyeri)
11 June 2026
1,641 words in judgment
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The bottom line

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A Kenyan court ruled that an appeal does not die when one party passes away, so long as the dispute can continue against the surviving parties.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nyeri (E. K. Makori J) on a preliminary objection dated September 17, 2025 seeking to strike out the entire appeal. The Respondents argued that the appeal was instituted and prosecuted in the name of a deceased person without a grant of letters of administration, contrary to Section 82(a) of the Law of Succession Act, and that the 1st Respondent having died, the appeal abated under Order 24 Rules 3(2) and 4(3) of the Civil Procedure Rules, 2010, rendering the proceedings nullities and depriving the court of jurisdiction. The appeal was directed against a trial court ruling of September 5, 2024 in Nyeri CM ELC 201 of 2018, which had allowed the 2nd Respondent's application for eviction from land parcel Nyeri/Ngarengiro/449. Applying the Mukisa Biscuit test as refined in Oraro v Mbaja, the court held that a preliminary objection must be a point of law unblurred by facts. It found that the 1st Respondent died on October 29, 2022 and was never substituted, so the appeal abated as against her alone; but because the 2nd Respondent is alive and the cause of action - the eviction orders concerning his parcel - survives against him, the appeal had not abated entirely and could proceed. Citing Ahmed v Varsani, the court reiterated that death of a party does not cause a suit to abate where the cause of action survives. The preliminary objection was dismissed with costs on June 11, 2026.

Key legal issues

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01

Whether the appeal abated upon the death of the 1st Respondent

Holding

The suit abated only against the deceased 1st Respondent, since more than one year elapsed without substitution, but the appeal survives against the living 2nd Respondent because the cause of action continues

Reasoning

The court applied Order 24 Rule 4 of the Civil Procedure Rules: where one of two or more defendants dies and the cause of action survives against the survivor, the court proceeds against the survivor. The 1st Respondent died on October 29, 2022 and no personal representative was appointed within one year, so the appeal abated as against her estate alone. However, the appeal arises from an eviction application by the 2nd Respondent, who is alive and retains an interest in the suit land, so the cause of action survives and the appeal may proceed against him.

p. 4
02

Whether the preliminary objection was competent

Holding

The objection, though framed as a point of law, was determined as a matter engaging the abatement provisions; the court treated the capacity question as a fundamental point of law capable of preliminary determination

Reasoning

Guided by Mukisa Biscuit and Oraro v Mbaja, the court held that a preliminary objection must be a point of law not blurred with facts. It found the capacity of a party to be subject to proceedings to be a fundamental point of law. The objection ultimately failed on the law of abatement, since the death of one of two respondents did not extinguish the appeal.

p. 3

Legal principles established

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  • The death of a plaintiff or defendant does not cause a suit to abate where the cause of action survives or continues against a surviving party; abatement operates only against the deceased party where no application to join the legal representative is made within one year
  • A preliminary objection must rest solely on a point of law and cannot be blurred with factual matters requiring proof or investigation

Court orders

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  1. 1.The preliminary objection dated September 17, 2025 is dismissed with costs

Authorities

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Legislation

  • Law of Succession Act (Cap. 160 Laws of Kenya)Section 82(a)
  • Civil Procedure Rules, 2010Order 24 Rule 3(2)
  • Civil Procedure Rules, 2010Order 24 Rule 4(1)-(3)
  • Civil Procedure Rules, 2010Order 24 Rule 7(2)

Cases cited (5)

  • Said Sweilem Gheithan Saanum v Commissioner of Lands & Others
    [2015] eKLR
  • Rebecca Mijide Mungole & Another v Kenya Power & Lighting Company Ltd & 2 Others
    [2017] eKLR
  • Mukisa Biscuit Manufacturers Ltd v West End Distributors Ltd
    (1969) EA 696
  • Oraro v Mbaja
    [2005] KEHC 3182 (KLR)
  • Ahmed v Varsani & 4 others
    (Environment and Land Case E013 of 2023) [2025] KEELC 18403 (KLR)
On appeal from
Chief Magistrate's Court (Environment and Land), Nyeri
Nyeri CM ELC 201 of 2018
Jurisdiction invoked
Not expressly stated; the court determined a preliminary objection in an appeal from the trial court, with jurisdiction contested on the basis of Order 24 of the Civil Procedure Rules and Section 82(a) of the Law of Succession Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muriithi & another v Mureithi & another (Civil Appeal E029 of 2024) [2026] KECA 1152 (KLR)", Case Analysis (2026). Civil Appeal No E029 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1152/eng@2026-06-11

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