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ELCDismissedNotice of Motion dated 18th November, 2025 (Eldoret ELC suit, plaint dated 27th May, 2014, filed 28th May, 2014)· [2026] KEELC 2713 (KLR)

Sitienei & another (Suing as Personal Representatives of the Estate of the Late Rotich arap Chemitei) v Kirwa & 4 others (Environment and Land Case E170 of 2014) [2026] KEELC 2713 (KLR)

Environment and Land Court
7 May 2026
3,188 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan land suit automatically died one year after the plaintiff's death because his family waited too long to replace him, and the court refused to revive it.

What this practically means

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Executive summary

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The plaintiff, Rotich Arap Chemitei, filed suit in 2014 seeking a permanent injunction over land parcel Karuna/Karuna Block 2 (Karuna)/57. The 4th Defendant later amended his defence to include a counter-claim. The plaintiff died in April 2023. When the matter came up for hearing on 25.9.2023 only the 4th Defendant's counsel attended and the court dismissed the plaintiff's suit for non-attendance. The 4th Defendant's counter-claim proceeded to formal proof. On 19.3.2025 the court allowed an application dated 22.2.2025 for substitution of the plaintiff by his personal representatives, Charles Kipkemoi Sitienei and Kipchumba Kandie, who had obtained a grant of letters of administration ad litem. The substituted plaintiffs then filed the Notice of Motion dated 18.11.2025 seeking setting aside of the dismissal orders, reinstatement of the suit, leave to file a reply to defence and defence to counter-claim, and stay of orders. The 4th Defendant opposed, citing inordinate delay of over two years and lack of vigilance. The court framed two issues and, applying Order 24 Rules 1, 2 and 3 of the Civil Procedure Rules and the Court of Appeal decision in Said Sweilem Gheitan Saanum v Commissioner of Lands, held that the suit abated by operation of law one year after the plaintiff's death since no substitution application was made within that period. The substitution of 19.3.2025 was therefore a nullity, and because the motion sought no extension of time or revival of the abated suit, it was made in a vacuum. The Notice of Motion dated 18.11.2025 was dismissed with costs to the 4th Defendant.

Key legal issues

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Whether the dismissed suit had abated under Order 24 Rule 3(2) of the Civil Procedure Rules

Holding

The suit abated by operation of law because the plaintiff died on 5.4.2023 and no application to substitute his legal representatives was made within one year; the substitution allowed on 19.3.2025 was a nullity

Reasoning

Relying on Order 24 Rules 1, 2 and 3(1) & (2) of the Civil Procedure Rules and the Court of Appeal decision in Said Sweilem Gheitan Saanum v Commissioner of Lands, the court held that death of a plaintiff does not cause abatement if the cause of action survives, but where no application for substitution is made within one year the suit abates automatically. Abatement operates by passage of time without needing a court declaration, though an order may be recorded for convenience. The application for substitution on 22.2.2025 was made after abatement and was therefore a nullity. The present application did not seek extension of time or revival, hence it was made in a vacuum.

p. 6

Legal principles established

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  • A suit abates by operation of law one year after the death of a plaintiff where no application for substitution of the legal representative is made; no court order is required to effect abatement

Court orders

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  1. 1.The Notice of Motion dated 18.11.2025 is dismissed with costs to the 4th Defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application under Order 24 of the Civil Procedure Rules

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, "Sitienei & another (Suing as Personal Representatives of the Estate of the Late Rotich arap Chemitei) v Kirwa & 4 others (Environment and Land Case E170 of 2014) [2026] KEELC 2713 (KLR)", Case Analysis (2026). Notice of Motion dated 18th November, 2025 (Eldoret ELC suit, plaint dated 27th May, 2014, filed 28th May, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2713/eng@2026-05-07

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