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Nyamanga v Makabong'o (Sued as Administrators of the Estate of Philip Odero Makabong'o - Deceased) & 2 others (Environment and Land Case 860 of 2017) [2025] KEELC 5132 (KLR)

Environment and Land Court (or High Court) - not expressly stated in the judgment text
7 July 2025
1,935 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside a land judgment won against a sick defendant who never had his day in court, and let his widow take over the case.

What this practically means

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Executive summary

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The Applicant, Philister Atieno Makabong'o, widow and legal representative (holding Letters Ad Litem) of the deceased 1st Defendant, moved the court by Notice of Motion dated 2nd October 2024 seeking substitution of the deceased defendant, leave for Kerario Marwa & Co. Advocates to come on record, setting aside of the judgment delivered 29th December 2023 and decree issued 21st March 2024, and reopening of both parties' cases. She explained that the deceased had instructed S.M. Sagwe & Co. Advocates but, owing to prolonged illness following a 2017 accident and repeated hospital visits (including to Aga Khan Migori Clinic between February and May 2023), was unable to follow the suit, which was heard and concluded in May 2023 and decided without his participation; he died on 24th December 2023. The Plaintiff/Respondent opposed only the setting aside, citing the suit's age, and raised no objection to substitution or the change of advocates, which was settled by consent. The court framed two issues: whether the judgment should be set aside and whether substitution should be allowed. Applying Section 80 of the Civil Procedure Act, Order 45 and Order 25 Rule 1 of the Civil Procedure Rules, and Article 50 of the Constitution, the court found the medical evidence newly demonstrated the deceased's incapacity, held the judgment irregular, and allowed the application. It ordered substitution, amendment of pleadings within 45 days, setting aside of the 29th December 2023 judgment, reopening of both cases to the extent of the deceased's illness and demise, and fixed mention for 22nd October 2025, with costs in the cause.

Questions the Court framed

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

  1. 1.Whether the court should vary/set aside the judgement delivered and issued on 29th December 2023
  2. 2.Whether the court should allow the substitution of the applicant

Key legal issues

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01

Whether the judgment of 29th December 2023 should be set aside/reviewed

Holding

Yes. The deceased defendant was demonstrably unwell during the hearing period and could not attend; the judgment is irregular and setting it aside is necessary to protect the fair-hearing guarantee.

Reasoning

The court reviewed Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, noting review lies for discovery of new matter, error apparent on the face of the record, or sufficient reason. Medical records showed the deceased was ill from 2017 and repeatedly attended Aga Khan Migori Clinic between February and May 2023, when the case was heard. The applicant could not have produced this proof earlier since she was not involved in the prosecution of the matter. Article 50 of the Constitution reinforced the duty to ensure a fair hearing.

p. 4
02

Whether the deceased 1st Defendant should be substituted by the Applicant

Holding

Yes. Under Order 25 Rule 1 of the Civil Procedure Rules the legal representative of a deceased sole defendant whose cause of action survives must be made a party; the Respondent did not oppose substitution.

Reasoning

The court applied Order 25 Rule 1, which mandates that where a sole defendant dies and the cause of action survives, the court shall cause the legal representative to be joined and proceed with the suit. The applicant held a Grant of Letters Ad Litem, and the Plaintiff/Respondent expressly raised no objection to the substitution, leaving no basis to refuse the prayer.

p. 4
03

Leave for Kerario Marwa & Co. Advocates to come on record

Holding

Settled by consent; the prayer is spent, though the court admonished the firm for not following the correct Order 9 Rule 9 sequence.

Reasoning

The parties resolved this issue by consent and a Notice of Change of Advocate was filed. The court nonetheless advised that under Order 9 Rule 9 the incoming advocate should first obtain a consent or court leave before filing the Notice of Change of Advocates, observing that parties should learn to do first things first. The court treated the prayer as spent and proceeded to the substantive issues.

p. 2

Legal principles established

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  • Where a deceased defendant's illness prevented participation in the hearing and this was not within the applicant's knowledge, setting aside the judgment is warranted to protect the fair-hearing right under Article 50.
  • Upon the death of a sole defendant whose cause of action survives, the court shall cause the legal representative of the deceased to be made a party under Order 25 Rule 1.

Court orders

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  1. 1.The 1st Defendant is substituted by the Applicant as prayed; the pleadings be amended within the next forty five days
  2. 2.The Judgement delivered on 29th December 2023 is hereby set aside
  3. 3.The Plaintiff and Defendants' Case are re-opened to the extent where the applicant's deceased husband fell ill and was not able to testify and until his demise
  4. 4.Mention on 22nd October 2025
  5. 5.Costs in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 51 as read with Order 2(3) and Order 50 Rule 6 of the Civil Procedure Rules, 2010

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.

In light of the information on his health now being made known to the court, it would be a travesty to allow the judgement to stand as it is. There is an error on record and therefore the judgement is irregular.
p. 4setting aside judgment for illness of deceased defendant
Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
p. 4Article 50 fair hearing right
The Judgement delivered on 29th December 2023 is hereby set aside
p. 4final orders - setting aside of judgment
The Plaintifi and Defendants' Case are hereby re-opened to the extent where the applicant's deceased husband fell ill and was not able to testify and until his demise.
p. 4final orders - reopening of case
The 1st Defendant is substituted by the Applicant herein as prayed. The Pleadings be amended within the next forty five days.
p. 4final orders - substitution

Issues in the judgment

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minor

The court misstates which party was unwell, saying the proceedings would be set aside only to the extent undertaken 'when the Plaintifi was unwell', although the illness relied on was that of the deceased 1st Defendant.

minor

The court refers to the Respondent as 'the Plaintifi/Applicant' in describing the submissions, although the Applicant is the Defendant's side.

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, "Nyamanga v Makabong'o (Sued as Administrators of the Estate of Philip Odero Makabong'o - Deceased) & 2 others (Environment and Land Case 860 of 2017) [2025] KEELC 5132 (KLR)", Case Analysis (2025). not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5132/eng@2025-07-07

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