Wachira & another (Suing as the Legal Administrators of the Estate of Wachira Kinguru) v Ngundo & 2 others; Muchungu & 2 others (Interested Parties) (Environment and Land Case 33 of 2013) [2026] KEELC 458 (KLR)

Order 24 Rule 4(3) of the Civil Procedure Rules provides that a suit against a deceased person not substituted within one year of death abates. The 2nd defendant died in 2012 with no substitution attempt by the plaintiffs. Abatement being an operation of law, no party need move the court to declare it, rendering prayer (1) of the interested parties' application superfluous.

Under Sections 107 to 109 of the Evidence Act, the burden lay on the plaintiffs to prove the proposed substitute's legal capacity. They did not rebut the interested parties' deposition through a further affidavit. The Court of Appeal authorities cited confirm that only a person clothed with a grant may act for a deceased's estate; hence the substitution application failed.

Following the Court of Appeal in Rebecca Mijide Mungole, effluxion of time causes abatement; time must first be extended, then the legal representative joined, then revival sought. Although an omnibus application is permissible, the plaintiffs' prayer order placed substitution first and enlargement of time second, running counter to the prescribed sequence.

The plaintiffs pleaded particulars of fraud against the 3rd defendant, alleging the fraudulent transactions of the 1st defendant could only have occurred with the 3rd defendant's aid. Considering the pleadings and the possibility of future substitution once a legal representative is appointed, the court found the claim against the 3rd defendant subsisting.