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ELCDismissedNotice of Motion dated 10th December, 2024 (suit number not stated in judgment)· [2025] KEELC 5136 (KLR)

Njoroge v Kamau (Environment and Land Case Civil Suit 32 of 2012) [2025] KEELC 5136 (KLR)

Environment and Land Court
10 July 2025
JOJ. O. Olola
1,954 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 ruled that a lawsuit does not automatically die when a party passes away during trial, allowing execution against their estate.

What this practically means

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Executive summary

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By a Notice of Motion dated 10th December, 2024, the legal representatives of Peter Kamau Nguatha (deceased), who had been the 1st Defendant in a counterclaim, sought to be enjoined in the suit, to set aside the judgment of 28th April, 2022, to declare that the suit had abated on the deceased's death on 26th June, 2021, to nullify execution of the decree against the estate, to strike down affidavits purportedly signed by the deceased after his death, and to obtain a permanent injunction restraining dealings with the estate. The application was prompted by demand letters from the firm of J.O. Magolo & Co. Advocates dated 5th December, 2024, threatening execution of the decretal sum and demanding alleged legal fees. The 1st Respondent and the Defendant opposed, showing the deceased had participated fully in the trial, instructing the same advocate and testifying on 23rd October, 2019. The court held that under Order 24 of the Civil Procedure Rules, abatement occurs only where one year passes without substitution; judgment was delivered only 10 months after death, and the cause of action survived the deceased. Relying on Eunice Kivunda Kinyua v Josephat Mwathi Kibiri and Mueni Kiamba v Mbithi Kimeu, the court found that after judgment only execution remained, which could lawfully be effected against the estate, and that the applicants' claim of ignorance of the proceedings was unconvincing. The motion was dismissed with costs to the Defendant.

Key legal issues

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01

Whether the suit abated upon the death of the 1st Defendant in the Counterclaim

Holding

The suit did not abate because judgment was delivered only 10 months after the deceased's death, within the one-year window, and the cause of action survived him

Reasoning

Order 24 Rule 4 requires substitution of a deceased defendant's legal representative, and under Order 24 Rule 3 abatement occurs only after one year without substitution. The deceased died on 26th June, 2021 and judgment was rendered on 28th April, 2022, roughly 10 months later. The cause of action survived him as he had testified at trial. Following Eunice Kivunda Kinyua v Josephat Mwathi Kibiri, execution could proceed against the estate.

p. 4
02

Whether the applicants were unaware of the proceedings so as to justify setting aside the judgment

Holding

The court was not persuaded that the 1st Applicant was unaware of the proceedings, which had reached the execution stage

Reasoning

The record showed the deceased attended court and testified on 23rd October, 2019, and instructed the same advocate as the defendant. The court found the applicants' claim of ignorance unconvincing, noting they rushed to court only after receiving demand letters dated 5th December, 2024 threatening execution, which suggested knowledge of the suit.

p. 4

Legal principles established

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  • A suit only abates where one year has passed after a party's death and no substitution has been made
  • Substitution and abatement rules do not apply to execution of orders after judgment

Court orders

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  1. 1.The Notice of Motion dated 10th December, 2024 is dismissed
  2. 2.Costs of the application awarded to the Defendant

Authorities

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Legislation

  • Constitution of KenyaArticle 50(3)
  • Civil Procedure RulesOrder 24 Rule 4
  • Civil Procedure RulesOrder 24 Rule 3
  • Civil Procedure Rules (old)Order 23 rule 11
  • Civil Procedure RulesOrder 24 rule 10

Cases cited (2)

  • Eunice Kivunda Kinyua –vs- Josephat Mwathi Kibiri
    (2018) KEHC (3858) KLR
  • Mueni Kiamba –vs- Mbithi Kimeu
    (2017) eKLR
Jurisdiction invoked
Original jurisdiction over the suit; application brought under the Civil Procedure Rules, Order 24

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, "Njoroge v Kamau (Environment and Land Case Civil Suit 32 of 2012) [2025] KEELC 5136 (KLR)", Case Analysis (2025). Notice of Motion dated 10th December, 2024 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5136/eng@2025-07-10

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