Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMakueni ELC 233 to 241 of 2017 (application dated 20th September 2024)

Kitulu & 8 others v Ndolo (Environment and Land Case 931 of 2017) [2025] KEELC 8055 (KLR)

Environment and Land Court
20 November 2025
1,601 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The court confirmed that a judgment in your favour survives your death — winning parties' estates can execute the decree even without substitution.

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Makueni (E. O. Obaga, J) determines a notice of motion dated 20th September 2024 by the Defendant/Applicant seeking a declaration that the suits by two deceased plaintiffs, Jackson Musyoka Kakunzu and Peter Kaleli Kanyasya, had abated, vacation of the judgment of 19th March 2018 and all consequential orders, and a permanent injunction against transfer of the suit property to their estates. The background is a judgment delivered on 19th March 2018 in favour of nine plaintiffs against the late Elizabeth Kamene Ndolo, upheld by the Court of Appeal on 18th November 2022, after which the plaintiffs commenced execution, delayed by subdivision of the suit property. Kakunzu died on 13th July 2016 and Kanyasya on 28th August 2020, without substitution within one year in either case. The Applicant argued the suits abated and execution against the estates was irregular. The Respondents countered that under Order 24 Rule 10 of the Civil Procedure Rules, abatement does not affect execution proceedings; that letters of administration for Kakunzu's estate were issued a day after judgment; and that substitution is unnecessary at the execution stage. The court framed two issues: whether the suits had abated and whether the judgment and consequential orders should be vacated. Relying on Order 24 Rule 10 and the Fidelity Commercial Bank and Mueni Kiamba authorities, the court held that abatement does not affect execution, both judgments were valid, and substitution of Kakunzu's estate had been effected. The application was dismissed with costs to the Respondents.

Questions the Court framed

#

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

  1. 1.Whether the suits by Jackson Musyoka Kakunzu and Peter Kaleli Kanyasya had abated
  2. 2.Whether the judgment of 19th March 2018 together with all consequential orders arising therefrom ought to be vacated as against the two deceased plaintiffs

Key legal issues

#
01

Whether the suits by the two deceased plaintiffs had abated for lack of substitution within one year

Holding

The suits had not abated; abatement rules do not apply to execution of an already-passed judgment, and substitution of Jackson Musyoka Kakunzu's estate had in any event been effected

Reasoning

Order 24 Rule 10 excludes Rules 3, 4 and 7 from execution proceedings. Peter Kaleli Kanyasya died after judgment had been delivered, so only execution remained, which can proceed without substitution. For Jackson Musyoka Kakunzu, letters of administration were issued a day after judgment; proceedings had been conducted to the end and substitution of his estate had in fact been done. There were no pending proceedings requiring a legal representative.

p. 4
02

Whether the judgment of 19th March 2018 and consequential orders should be vacated

Holding

The judgment, affirmed on appeal, and its consequential orders cannot be vacated

Reasoning

Since the suits had not abated and the judgments in favour of the deceased plaintiffs were valid, there was no basis for vacating the judgment of 19th March 2018, which had been upheld by the Court of Appeal on 18th November 2022, or the consequential orders arising from it. Execution of the decree in favour of the estates is therefore regular.

p. 4

Legal principles established

#
  • Abatement under Order 24 does not affect proceedings in execution of a decree; execution may proceed after the death of a decree-holder without substitution

Court orders

#
  1. 1.The Applicant's notice of motion dated 20th September 2024 is dismissed
  2. 2.Costs of the application to the Respondents

The bench

#

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

majority

Wrote the judgment

Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court under the Civil Procedure Act and Rules (Order 24)

Relief refused

#

Declaration that the suit has abated as far as Jackson Musyoka Kakunzu and Peter Kaleli Kanyasya are concerned

Abatement does not affect execution proceedings; judgment had already been delivered in favour of both deceased plaintiffs

p. 4

Vacation of the judgment of 19th March 2018 and all consequential orders

The judgment and consequential orders could not be vacated as the proceedings had concluded and only execution remained

p. 4

Permanent injunction restraining the Registrar Titles and/or National Land Commission from transferring the suit property

The application was dismissed in its entirety as devoid of merit

p. 4

Costs

Application dismissed with costs to the Respondents

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Order 24 Rule 10 of the Civil Procedure Rules is clear that abatement does not afiect execution proceedings.
p. 4Abatement and execution
From the above analysis, it is clear that the Applicant's application is devoid of merit. It is dismissed with costs to the Respondents.
p. 4Disposition
Under the provisions of Order 24 Rule 10 of the Civil Procedure Rules, it is provided that the substitution or causing the legal representative of the deceased to be made a party to the suit shall not be efiected in the execution of the decree or order
p. 3Substitution in execution (as cited)

Issues in the judgment

#
minor

Inconsistent date of issue of letters of administration for Jackson Musyoka Kakunzu's estate

minor

Inconsistent date of death of Peter Kaleli Kanyasya in the Respondents' submissions

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kitulu & 8 others v Ndolo (Environment and Land Case 931 of 2017) [2025] KEELC 8055 (KLR)", Case Analysis (2025). Makueni ELC 233 to 241 of 2017 (application dated 20th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8055/eng@2025-11-20

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