Muriithi Ngwenya v Gikonyo Macharia Mwangi & 2 others [2018] KEELC 4624 (KLR)
The bottom line
#A Kenyan court refused to replace a deceased defendant because the applicant had no grant of representation, missed the one-year deadline, and never served the intended substitute.
What this practically means
#Executive summary
#Key legal issues
#Whether substitution of a deceased defendant is permissible without a grant of representation
Substitution can only be of a party clothed with legal representation; the intended substitute must obtain a grant, potentially a limited grant under paragraph 14 of the Fifth Schedule to the Law of Succession Act, or be cited.
Order 24 rule 4 requires the legal representative of a deceased defendant to be made a party. Section 2 of the Civil Procedure Act defines a legal representative as one who in law represents the estate. The intended substitute was described only as the deceased's wife of over 50 years, with no evidence of a grant or citation proceedings, so she could not be substituted.
Whether the suit had abated by operation of law
The 1st Defendant died on 18/3/2012 and the substitution application was filed on 5/5/14, over two years later, so the suit abated against the deceased Defendant on 17/3/13 and substitution could not be ordered before revival under Order 24 rule 7(2).
Order 24 rule 4(3) provides that where no application is made within one year, the suit abates against the deceased Defendant. Relying on Kenya Farmers' Cooperative Union Ltd v. Charles Murgor, a court has no jurisdiction to order substitution in an abated suit; revival must precede substitution.
Service of the substitution application on the intended substitute
Failure to serve the intended substitute offended natural justice under Article 50 and Order 51 rule 3 of the Civil Procedure Rules.
Order 51 rule 3 requires every person affected by an application to be served. There was no material on record showing service on the intended substitute, Lucy Wambui Gikonyo, so the application also failed on this independent ground.
Jurisdiction of the Environment and Land Court over succession matters
The Court lacks jurisdiction over succession matters; its jurisdiction is limited to environment and land disputes under Article 162(2)(b) of the Constitution.
While the Succession Act provides a cure for the Applicant's frustration through citation and limited grants, the Court itself cannot determine succession matters, being limited to disputes on environment, use, occupation and title to land.
Legal principles established
#- Substitution of a deceased defendant requires a legal representative clothed with a grant under the Law of Succession Act; where parties are unwilling, a limited grant under the Fifth Schedule may be sought by citation.
- A suit abates against a deceased defendant if no substitution application is made within one year, and no substitution may be ordered until the abated suit is revived.
- Every person affected by an application must be served under Order 51 rule 3, consistent with natural justice under Article 50 of the Constitution.
Court orders
#- 1.The Notice of Motion dated 10/4/13 seeking substitution of the 1st Defendant is dismissed
- 2.Costs of the application awarded to the Respondent (2nd Defendant)
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and the Environment & Land Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ouya & another v Oseko & 4 others (Civil Appeal E697 & E715 of 2021 (Consolidated)) [2025] KECA 1724 (KLR)[2025] KECA 1724 (KLR)24 Oct 2025
- Stephen Mbuthia Kigotho v Richard Gathinieri Chongo & another; George Gaitho Chongo (Applicant) [2020] KEELC 136 (KLR)[2020] KEELC 136 (KLR)3 Dec 2020
Cite this brief
#Cite this brief
Caselaw, "Muriithi Ngwenya v Gikonyo Macharia Mwangi & 2 others [2018] KEELC 4624 (KLR)", Case Analysis (2018). ELC Case filed 16/2/2012 (amended 3/8/2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4624/eng@2018-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.