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ELCPartially Allowed· [2026] KEELC 2553 (KLR)

Kiburu & another v Babu (Environment and Land Case 58 of 2021 & Civil Case 90 of 2013 (Consolidated)) [2026] KEELC 2553 (KLR)

Environment and Land Court
22 April 2026
LMLucy N. Mbugua
887 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 set aside a judgment entered against a deceased defendant and allowed his personal representative to step in and defend the land case.

What this practically means

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Executive summary

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This first-instance ruling of the Environment and Land Court at Nanyuki (Lucy N. Mbugua, J) determined a notice of motion by the applicant, James Murigu Maina, seeking stay of execution of a judgment delivered on 31.7.2025, setting aside of that judgment, and his substitution in place of the deceased defendant, on the strength of a grant of letters of administration ad litem. The plaintiff opposed, arguing that the court had become functus officio upon issuance of the decree, that the deceased had been properly served (with photographs taken at Osutua catholic church in Narok), that the deceased was in good health at the time, and that the medical report was not authentic under the Mental Health Act as it was signed by a clinical officer. The respondent further challenged the applicant's locus on the basis of the limited grant, citing JM v MWM & Another and Njogu & 2 Others v Githinji & 2 Others. Framing two issues - substitution and setting aside of the amended judgment - the court applied Mbaya Nzulwa and Sections 79 and 82 of the Law of Succession Act to find the applicant had capacity as personal representative. Though the death certificate attributed death to Tetanus and service on the deceased was unrebutted, the court held that judgment delivered on 16.7.2025 (amended 31.7.2025) postdated the defendant's death, and invoking 'Mortui non mordent' and Patel v EA Cargo Handling Services Ltd, found sufficient cause to set aside the judgment, decree and ex parte proceedings of 6.5.2025. The application was allowed with each party bearing their own costs.

Key legal issues

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01

Capacity of the applicant to seek substitution of the deceased defendant

Holding

The applicant, holding a grant ad litem limited to substituting the deceased, has capacity to apply and steps into the shoes of the deceased in a fiduciary capacity.

Reasoning

Relying on Mbaya Nzulwa v Kenya Power & Lighting Co. Ltd and Sections 79 and 82 of the Law of Succession Act, the court held that the deceased's property vests in his personal representative who enforces or answers causes of action surviving the deceased. The applicant produced a death certificate and a grant ad litem expressly limited to the purpose of substitution, which sufficed to establish his locus despite the respondent's functus officio objection.

p. 2
02

Whether the judgment and decree should be set aside despite proof of service on the deceased

Holding

Yes. Because the defendant died before judgment was delivered, the judgment, decree and ex parte proceedings of 6.5.2025 were set aside as sufficient cause existed.

Reasoning

Although the death certificate attributed death to Tetanus and did not mention the long illness alleged, and the process server's averments on service (including photographs taken at Osutua catholic church in Narok) went unrebutted, the court invoked the maxim 'Mortui non mordent' and the principle that courts exist to do justice. Since the judgment of 16.7.2025 (amended 31.7.2025) was delivered after the defendant's death, setting aside was warranted.

p. 2

Legal principles established

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  • An application to substitute a deceased party can only be made by his personal representative, in whom the deceased's estate vests under Section 79 of the Law of Succession Act.
  • Delivery of judgment against a deceased person is sufficient cause to set aside the judgment, decree and ex parte proceedings in the interest of doing justice.

Court orders

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  1. 1.The prayer for substitution of the applicant in place of the deceased defendant is allowed
  2. 2.The judgment delivered on 16.7.2025 (amended on 31.7.2025) is set aside
  3. 3.The decree herein is set aside
  4. 4.The ex parte hearing proceedings of 6.5.2025 are set aside
  5. 5.Each party is to bear their own costs of the application
Jurisdiction invoked
Inherent powers of the court over its own proceedings; substitution of a deceased party under Sections 79 and 82 of the Law of Succession 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, "Kiburu & another v Babu (Environment and Land Case 58 of 2021 & Civil Case 90 of 2013 (Consolidated)) [2026] KEELC 2553 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2553/eng@2026-04-22

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