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ELCDismissedNot stated in judgment· [2025] KEELC 5512 (KLR)

Sunkuiyia v Osoi (Administrator of the Estate of the Late Daniel Tarayia - Osoi (Deceased)) & another (Environment and Land Case 5 of 2018) [2025] KEELC 5512 (KLR)

Environment and Land Court
24 July 2025
MMM.D. Mwangi
691 words in judgment
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The bottom line

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A Kenyan court confirmed that you cannot substitute a deceased party in a land case unless you first revive the suit, which died automatically one year after the death.

What this practically means

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Executive summary

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This judgment by M.D. Mwangi J of the Environment and Land Court at Kajiado, delivered virtually on 24th July 2025, determines an application by the Applicant, a personal representative of the estate of the deceased 1st Respondent, to be substituted as a party in a suit in which judgment had earlier been delivered on 24th April 2024 by Gicheru J. The earlier judgment declared the Kajiado Land Disputes Tribunal award of 11th August 2011 null and void, holding that the Tribunal had earlier determined the dispute by a decision of 20th December 2007 adopted as a court judgment with a decree issued on 15th April 2010, which had never been set aside. The learned Judge had also found that the suit against the 1st Respondent had not abated, no evidence of her death having been placed before the court. The Applicant thereafter presented evidence that the 1st Respondent died on 22nd July 2020 during the pendency of the suit. The court held that under Order 24 rule 4(3) of the Civil Procedure Rules, a suit abates against a deceased defendant if substitution is not sought within one year of death; abatement occurs automatically by operation of law. Citing the Court of Appeal decision in Keith & 2 others v Alibhai, the court held that an abated suit must first be revived under Order 24 rule 7(2) and that revival precedes substitution. Since the Applicant sought substitution without seeking revival, her application was struck out with costs to the Petitioner.

Key legal issues

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01

Whether substitution of a deceased party may be granted where the suit has abated

Holding

No - the application was struck out because the suit had abated and was never revived

Reasoning

Order 24 rule 4(3) requires substitution of a deceased defendant within one year of death, failing which the suit abates. Abatement means the suit ceases to exist in law. An abated suit must first be revived under Order 24 rule 7(2) before substitution can be entertained. The Applicant presented evidence of death on 22nd July 2020 but sought substitution without seeking revival first.

p. 2

Legal principles established

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  • Abatement of a suit occurs automatically by operation of law where substitution is not sought within one year of the defendant's death
  • Substitution can only occur in a suit that has first been revived; revival precedes substitution

Court orders

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  1. 1.The Applicant's application for substitution is struck out
  2. 2.Costs of the application to the Petitioner

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 4(3)
  • Civil Procedure RulesOrder 24 rule 7(2)

Cases cited (3)

  • Keith & 2 others (sued in their capacity as advocates practicing under the firm name of Daly & Figgis Advocates v Alibhai
    Civil Appeal No. 359 of 2018 (2024) KECA 1196 (KLR)
  • M'Mboroki Marangacha v Land Adjudication Officer, Nyambene & 2 others
    Meru HCC Application No. 45 of 1997
  • KFC Union v Charles Murgor (deceased)
    NBI HCCC No. 1671 of 1994
Jurisdiction invoked
Not expressly invoked; court exercising original jurisdiction with reference to Order 24 of the Civil Procedure Rules

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, "Sunkuiyia v Osoi (Administrator of the Estate of the Late Daniel Tarayia - Osoi (Deceased)) & another (Environment and Land Case 5 of 2018) [2025] KEELC 5512 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5512/eng@2025-07-24

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