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ELCDismissedMigori E.L.C. Court Petition No. 7 of 2017

Olilo v Principal Magistrates Court at Oyugis Law Courts & 4 others (Environment and Land Petition E001 of 2023) [2026] KEELC 1955 (KLR)

Environment and Land Court
2 March 2026
1,296 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that waiting over a year to replace a deceased party in a lawsuit kills the claim, so act immediately when someone dies.

What this practically means

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Executive summary

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By a Notice of Motion dated 30th April 2025 under Order 24 rule 4(1) of the Civil Procedure Rules and Sections 3, 3A and 63e of the Civil Procedure Act, the Petitioner in Migori E.L.C. Court Petition No. 7 of 2017 sought the substitution of William Ngodhe Akech, son and legal representative (per a confirmed Grant dated 11/10/2023 in Oyugis SPMC Succession Cause No. 134 of 2023) of Dalmas Akech Ngiela, the deceased 4th Defendant. The Petitioner deposed that he learnt of the death through an affidavit sworn by the deceased's son on 17/11/2022, that the cause of action survived, and that no prejudice would be occasioned by substitution. The Respondents filed no reply. The court framed two issues: competency of the application and costs. On competency, it held that under Order 24 Rules 3 and 7, a suit abates against a deceased defendant where no substitution is made within one year. The applicant learnt of the death on 17/11/2022 but took no substitution or revival steps even after the Grant issued on 11/10/2023, and did not demonstrate the specific date of death. The application was therefore incompetent, being an attempt to substitute a non-existent person without first reviving the abated suit. On costs, since the applicant lost, costs follow the event under Section 27 of the Civil Procedure Act and the applicant was ordered to bear them. The application was dismissed with the applicant bearing his own costs.

Questions the Court framed

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

  1. 1.Whether the application is competent before the Court
  2. 2.Who to bear the costs of the application

Key legal issues

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01

Whether the application for substitution was competent despite being filed years after the applicant learned of the 4th Respondent's death

Holding

The application was incompetent because the suit against the deceased 4th Respondent had abated; the applicant never sought revival of the abated suit before seeking substitution.

Reasoning

Order 24 Rules 2, 3, 4(1) and 7 of the Civil Procedure Rules govern substitution and abatement. Rule 3 provides that where no application is made within one year, the suit abates against the deceased defendant. The applicant learned of the death on 17th November 2022 but took no steps to substitute or revive even after the confirmed Grant issued on 11th October 2023. He also failed to demonstrate the specific date of death. Substitution of a non-existent party cannot be ordered.

p. 3
02

Who should bear the costs of the application

Holding

The applicant, having lost the application, bears his own costs under Section 27 of the Civil Procedure Act as costs follow the event.

Reasoning

The court reasoned that the applicant moved the court for orders that were not granted; having lost the application, costs follow the event and the applicant shall bear them.

p. 3

Legal principles established

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  • Where a party dies, particularly a defendant, and no substitution of the deceased is made within 12 months of death, the suit against him or her abates and ceases to exist against the deceased.
  • An application for substitution made after abatement, without prior revival of the abated suit, is incompetent.
  • Costs follow the event under Section 27 of the Civil Procedure Act.

Court orders

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  1. 1.The Notice of Motion dated 30th April 2025 seeking substitution of William Ngodhe Akech for the deceased 4th Defendant was not granted/dismissed
  2. 2.The applicant shall bear the costs of the application

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 24 rule 4(1) of the Civil Procedure Rules, and Sections 3, 3A and 63e of the Civil Procedure Act

Relief refused

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Substitution of William Ngodhe Akech as legal representative of the deceased 4th Defendant in place of Dalmas Akech Ngiela

The suit against the deceased 4th Respondent had abated as no substitution or revival application was made within one year, and the applicant failed to demonstrate the specific date of death; the application sought to substitute a non-existent party.

p. 3

Costs

Costs of the application awarded to the applicant himself, as the losing party - the applicant is the one who shall bear them, per Section 27 of the Civil Procedure Act (costs follow the event).

Quotable passages

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

Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant.
p. 3Abatement of suit against deceased defendant - Order 24 Rule 3
The instant application is thus incompetent as it was brought before the court was moved for the revival of the abated against the 4th Respondent.
p. 3Incompetency of substitution application after abatement without revival
Thus, under Section 27 of the Civil Procedure Act since costs follow the event, the applicant is the one who shall bear them.
p. 3Final orders - costs
It is this Court's view that the instant application is intended to cause substitution of a non-existent person in so far as the abatement took place.
p. 3Substitution of a non-existent party

Issues in the judgment

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minor

The judgment refers to 'Court (sic) 24 rule 4(1) of the Civil Procedure Rules' - an evident typographical error for 'Order 24 rule 4(1)'.

minor

The deceased 4th Defendant's name appears inconsistently in the judgment as 'Dalmas Akech Ngiela' and 'Dalmas Akech Ngodhe'.

minor

The judgment is dated 2nd March 2026 while the application is dated 30th April 2025; the applicant is said to have learnt of the death on 17/11/2022, making the application filed roughly two and a half years later, though the judgment elsewhere describes the delay as 'three years'.

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, "Olilo v Principal Magistrates Court at Oyugis Law Courts & 4 others (Environment and Land Petition E001 of 2023) [2026] KEELC 1955 (KLR)", Case Analysis (2026). Migori E.L.C. Court Petition No. 7 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1955/eng@2026-03-02

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