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ELCAllowedNot stated in the judgment (application dated 30th June 2025)· [2025] KEELC 8302 (KLR)

Dhanji & 4 others v Dhanji; Jayantilal (Applicant) (Environment and Land Case 203 of 2013) [2025] KEELC 8302 (KLR)

Environment and Land Court
27 November 2025
2,270 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you can replace a deceased party and change advocates after judgment, so a land dispute decree can still be executed by the estate.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Nairobi, delivered virtually by O. A. Angote J on 27th November 2025, determined an unopposed notice of motion dated 30th June 2025 brought under Section 19 of the Environment and Land Court Act, Sections 1A, 1B and 3A of the Civil Procedure Act, and Orders 9 and 24 of the Civil Procedure Rules. The Applicant sought leave for the firm of Sonal Raval Advocate to come on record after judgment for the 2nd Applicant, Jayantilal Dhanji Borkhataria, who died on 24th July 2020, and for substitution of his son, Bhavin Jayantilal Borkhataria, as the estate's legal representative. The Applicant held a Tanzanian grant of letters of administration intestate resealed by the High Court of Kenya on 9th April 2024 under Section 77 of the Law of Succession Act, and sought substitution to participate in pending execution proceedings following a judgment in his favour delivered by Obaga J on 26th November 2018, with a decree issued on 18th February 2019. The court held that abatement does not arise post-judgment because Order 24 Rule 10 excludes execution proceedings from the substitution rules, relying on Section 37(1) of the Civil Procedure Act and case authority. The resealed foreign grant conferred full legal capacity to represent the estate. On the change of advocates, Order 9 Rule 9 was satisfied: the application was served, no prejudice to the outgoing firm was demonstrated, and it may pursue a bill of costs. The court allowed the application, granting the change of representation, ordering substitution, and directing that costs be in the cause. An earlier 2023 application had been declined for failure to prove resealing of the grant, so res judicata did not bar the present application.

Key legal issues

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01

Substitution of a deceased party at the post-judgment/execution stage

Holding

Substitution is permissible; abatement does not arise because the cause of action was fully adjudicated before death, and Order 24 Rule 10 excludes execution proceedings from the substitution and abatement rules.

Reasoning

Order 24 Rule 3 imposes a one-year limit for substitution before a suit abates, but Order 24 Rule 10 expressly excludes execution proceedings from Rules 3, 4 and 7. Judgment had been delivered and a decree issued while the deceased was alive, so the cause was fully adjudicated; only execution remained, and Section 37(1) of the Civil Procedure Act contemplates execution against a deceased judgment-holder's legal representative. Substitution was therefore proper, and not barred by res judicata since an earlier application was declined only for failure to prove resealing of the grant.

p. 4
02

Capacity of the Applicant as legal representative of the deceased

Holding

The Applicant, holding a Tanzanian grant resealed by the High Court of Kenya under Section 77 of the Law of Succession Act, is a legal representative within Section 2 of the Civil Procedure Act.

Reasoning

The Applicant produced a grant of letters of administration intestate issued by the High Court of Tanzania and evidence of its resealing by the High Court of Kenya on 9th April 2024 in Probate and Administration Cause No. E084 of 2024 pursuant to Section 77 of the Law of Succession Act. Having complied with that section, the resealed grant carries the same force as a domestic grant and confers full capacity to represent the estate, including in execution of decrees.

p. 4
03

Leave to change advocates after judgment under Order 9 Rule 9

Holding

Leave was properly grantable: the application was served on all parties, no prejudice to the outgoing firm was shown, and any outstanding fees may be pursued by way of a bill of costs.

Reasoning

Order 9 Rule 9 requires leave of court or consent before a change of advocate after judgment, and service on all parties. The application was duly served, satisfying the procedural threshold. No evidence of prejudice to the outgoing firm or delay to execution was placed before the court, and the outgoing advocate retains the statutory remedy of a bill of costs under the Advocates Act.

p. 5

Legal principles established

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  • Abatement on death arises only in pending suits; once judgment is delivered the matter transitions into execution and Order 24 Rules 3, 4 and 7 do not apply.
  • A foreign grant resealed under Section 77 of the Law of Succession Act operates with the same force and effect as a Kenyan grant, conferring full legal capacity to represent the estate.
  • The purpose of Order 9 Rule 9 is to protect advocates from abrupt removal after judgment, not to prejudice litigants' substantive rights.

Court orders

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  1. 1.The firm of Sonal Raval Advocate is granted leave to come on record for the 2nd Applicant, in place of the firm of Ibrahim Issack & Company Advocates
  2. 2.Bhavin Jayantilal Borkhataria is substituted as the legal representative of the estate of the late Jayantilal Dhanji Borkhataria
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Environment and Land Court ActSection 19
  • Civil Procedure ActSections 1A, 1B, 3A, 2, 37(1)
  • Civil Procedure RulesOrder 9 Rule 9; Order 24 Rules 3 and 10
  • Law of Succession ActSection 77
  • Advocates Actnot specified (bill of costs remedy)

Cases cited (5)

  • Agnes Wanjiku Wang'ondu vs Uchumi Supermarket Ltd
    [2008] eKLR
  • Samuel Matheri Githen vs Lawrence Mwaura
    [2017] KEHC 2456 (KLR)
  • Dhulla Harichand Vs. Gulam Mohu-Udin and Aziz Din s/o Gulam Mohu-Udin
    (1940) KLR Vol. XIX
  • Temple Point Resort Limited vs Salama Beach Hotel Limited
    [2022] KEHC 15341 (KLR)
  • Johnson M.S. Njoguri vs Samuel Makindu Gachegu
    [2021] eKLR
Jurisdiction invoked
Section 19 of the Environment and Land Court Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Orders 9 and 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, "Dhanji & 4 others v Dhanji; Jayantilal (Applicant) (Environment and Land Case 203 of 2013) [2025] KEELC 8302 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 30th June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8302/eng@2025-11-27

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