Dhanji & 4 others v Dhanji; Jayantilal (Applicant) (Environment and Land Case 203 of 2013) [2025] KEELC 8302 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Substitution of a deceased party at the post-judgment/execution stage
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.
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.
Capacity of the Applicant as legal representative of the deceased
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.
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.
Leave to change advocates after judgment under Order 9 Rule 9
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.
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.
Legal principles established
#- 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
#- 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.Bhavin Jayantilal Borkhataria is substituted as the legal representative of the estate of the late Jayantilal Dhanji Borkhataria
- 3.Costs of the application shall be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.