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ELCPartially Allowed· [2026] KEELC 2193 (KLR)

Kathilu (Suing through his attorney Marcella Mbithe Kathilu) v Beln Development Limited & 2 others (Environment and Land Case 456 of 2015) [2026] KEELC 2193 (KLR)

Environment and Land Court
21 April 2026
MCMbogo C.G.
2,090 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court revived a land suit that had automatically lapsed after the plaintiff died, because the family acted quickly and in good faith.

What this practically means

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Executive summary

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Two competing notices of motion were before the court arising from the death of the plaintiff, Sebastian Paul Muinde Kathilu, on 10th July 2021 during the pendency of the suit. The first application, dated 15th July 2022, was by Cosmas Muinde Kathilu, who sought revival of the suit (if abated) and his substitution as plaintiff as the holder of a grant ad litem and later a full grant. The second application, dated 25th July 2022, was by Mathew Musau Kathilu and Alfred Kioki Kathilu, who sought extension of time for substitution and their own substitution as legal representatives. The defendant filed grounds of opposition in both, citing unexplained inordinate delay, abatement on 10th/11th July 2022, and the absence of any subsisting suit. Interested parties similarly opposed, noting conflicting grants issued by courts of equal jurisdiction. The court framed two issues: whether the suit should be revived, and whether the applicants should be substituted. Applying Order 24 Rule 3 and the Court of Appeal's three-stage analysis in Said Sweilem Gheithan Saanum, the court held that abatement takes effect automatically after one year, but revival is possible on sufficient cause. Both applications were filed less than two weeks after the lapse; during the one-year period the applicants had been pursuing grants in succession proceedings in Milimani and Machakos, so the delay was not inordinate. The court revived the suit, substituted Cosmas Muinde Kathilu and Alex Mutua Kathilu (the administrators appointed on 2nd March 2023) as plaintiffs, directed amendment of the plaint within 21 days, fixed further mention for 18th June 2026, and made no orders as to costs.

Key legal issues

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01

Whether the abated suit should be revived

Holding

The suit abated on 11th July 2022 but was revived because there was sufficient reason for the delay: both applications were filed less than two weeks after the one-year lapse, and the applicants were pursuing grants in succession causes during that period.

Reasoning

The court applied Order 24 Rule 3 and the three-stage framework in Said Sweilem Gheithan Saanum. Although abatement occurs automatically by operation of law where no application is made within one year, the proviso permits extension for good reason. Here litigation over the estate's administration was ongoing in Milimani and Machakos succession causes; the delay of under two weeks past the one-year mark was held not inordinate and sufficient cause was demonstrated.

p. 4
02

Who should be substituted in place of the deceased plaintiff

Holding

Cosmas Muinde Kathilu and Alex Mutua Kathilu, the administrators named in the letters of administration intestate issued on 2nd March 2023, were substituted as plaintiffs.

Reasoning

The court declined to belabour the rival claims between the competing applicants. The letters of administration intestate of 2nd March 2023 named Cosmas and Alex as administrators, and no order revoking that grant was shown. In the absence of revocation, the holders of the substantive grant are the proper legal representatives to be joined under Order 24.

p. 5

Legal principles established

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  • A suit that has abated following the death of a party can be revived on sufficient grounds, taking into consideration the delay in making the application
  • Whether delay in seeking revival/substitution is inordinate depends on the efforts made within the one-year period, such as pursuing grants ad litem and letters of administration

Court orders

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  1. 1.The deceased plaintiff's suit is hereby revived
  2. 2.Cosmas Muinde Kathilu and Alex Mutua Kathilu are substituted in place of the deceased plaintiff the late Sebastian Paul Muinde Kathilu pursuant to the letters of administration intestate issued on 2nd March, 2023
  3. 3.The plaint to be amended within 21 days to reflect the changes
  4. 4.Further mention on 18th June, 2026
  5. 5.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rules 1 & 3(1) and 4
  • Civil Procedure RulesOrder 51
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (1)

  • Said Sweilem Gheithan Saanum v Commissioner Of Lands (being sued through Attorney General) & 5 others
    [2015] KECA 284 (KLR)
Jurisdiction invoked
Order 24 Rules 1 & 3(1) and Order 51 of the Civil Procedure Rules, and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Kathilu (Suing through his attorney Marcella Mbithe Kathilu) v Beln Development Limited & 2 others (Environment and Land Case 456 of 2015) [2026] KEELC 2193 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2193/eng@2026-04-21

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