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ELCDismissedNot stated in excerpt (appeal from SPMC-ELC No. 28 of 2018)· [2025] KEELC 6043 (KLR)

Wafula v Khaemba (Environment and Land Appeal E034 of 2024) [2025] KEELC 6043 (KLR)

Environment and Land Court
18 September 2025
ECE.C. Cherono
1,693 words in judgment
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The bottom line

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What this practically means

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Executive summary

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Three Applicants, children and administrators of deceased Respondents in an appeal from the Webuye Senior Principal Magistrate's Court, filed a Notice of Motion seeking leave for new advocates to come on record, substitution of the deceased 2nd, 3rd and 5th Respondents with themselves as legal representatives, and arrest of the judgment scheduled for 30th July 2025 to allow the Respondents to file submissions. The Appellant opposed, filing a Replying Affidavit. The court reviewed the procedural history: the deaths of the Respondents were reported from October 2024, and the court had repeatedly granted the Applicants time to obtain grants of letters of administration ad litem, which they failed to obtain within the timelines. Examining the grants annexed to the application, the court found that Nora Nabukwangwa Khaemba died on 13/08/2016 and Timothy Wanyonyi Khaemba on 18/09/1996 - both before the former suit was filed on 9/05/2017 - so they had no capacity to institute the suit. Joseph Kisuya died on 29/01/2020; no grant was obtained within twelve months and no extension of time was sought, so his claim abated on 28/01/2021 under Order 24 of the Civil Procedure Rules. Holding the application to be a non-starter, frivolous and devoid of merit, the court dismissed it with costs. The judgment in the underlying appeal was thus not arrested, and the substitution and representation orders sought were refused.

Key legal issues

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01

Whether substitution of the deceased Respondents could be granted

Holding

Substitution was refused. Two of the deceased Respondents died before the former suit was instituted and therefore had no capacity to sue; the estate of the 5th Respondent's claim abated because no application was made within one year of death and no extension of time was sought.

Reasoning

The court examined the grants of letters of administration ad litem and the dates of death. Nora Nabukwangwa Khaemba died on 13/08/2016 and Timothy Wanyonyi Khaemba on 18/09/1996, both before the suit filed on 9/05/2017. Joseph Kisuya died on 29/01/2020; his claim abated on 28/01/2021 with no extension sought. The application was therefore frivolous.

p. 3
02

Whether judgment in the appeal should be arrested

Holding

Arrest of judgment was refused as the application seeking it lacked merit.

Reasoning

The court exercised its discretion against the Applicants, who had repeatedly failed to obtain grants of letters of administration within the timelines the court had given them, and whose underlying claims were fatally defective in any event.

p. 4

Legal principles established

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  • The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives or continues (Order 24 rule 1, Civil Procedure Rules)
  • Where no application is made within one year to join the legal representative of a deceased plaintiff, the suit abates so far as the deceased plaintiff is concerned, subject to extension of time for good reason

Court orders

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  1. 1.The Notice of Motion application dated 30th July 2025 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 (rules 1, 2, 3(1), 3(2))
On appeal from
Webuye Senior Principal Magistrate's Court
SPMC-ELC No. 28 of 2018
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts hearing environment and land matters; substitution governed by 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, "Wafula v Khaemba (Environment and Land Appeal E034 of 2024) [2025] KEELC 6043 (KLR)", Case Analysis (2025). Not stated in excerpt (appeal from SPMC-ELC No. 28 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6043/eng@2025-09-18

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