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ELCDismissedNotice of Motion dated 10.11.2025 (Eldoret ELC suit, judgment of 29.07.2025 under review)· [2026] KEELC 3274 (KLR)

Muge (Suing as the Administrator of the Estate of John Kimugge Kessei (Deceased)) v Kipkabus & 7 others (Environment and Land Case 888 of 2012) [2026] KEELC 3274 (KLR)

Environment and Land Court
26 May 2026
3,940 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Eldoret Land Court dismissed a son's attempt to step into his late father's land case after judgment, because his grant was obtained through the wrong procedure and the suit had long abated.

What this practically means

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Executive summary

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The Applicant, Collins Kibet Rono, son of the deceased 1st Defendant Richard Sitienei Kipkabus, moved the Environment and Land Court at Eldoret by Notice of Motion dated 10.11.2025 seeking to come on record after judgment, to be substituted for the deceased 1st Defendant, an interim stay of execution, and a review/setting aside of the Court's judgment of 29.07.2025 which declared the Plaintiff the lawful owner of LR No. 7558 and ordered vacation of the occupied portion. He argued that the 1st Defendant's estate was denied a fair hearing, that the judgment was ambiguous, and that adverse possession had extinguished the Plaintiff's rights. The Plaintiff opposed, contending the application was an abuse of process, that substitution was sought five years after death, that all defendants including the 1st Defendant had testified through Sammy Ruto Barno, and that the suit against the 1st Defendant had abated. The Court framed five issues. On substitution, it found the Limited Grant relied upon, obtained through Eldoret Chief Magistrates Court Miscellaneous Application No. E267 of 2025 by Notice of Motion rather than a petition, contravened the Law of Succession Act, Cap 160 and the Probate and Administration Rules and was irregular and unlawful; substitution was declined. The stay prayer was overtaken by events. On review, the Court held the application identified no Order 45 ground, that the Court was functus officio, and that the suit against the 1st Defendant had abated on 28.10.2021 under Order 24 Rule 4 for want of substitution within one year of death, making review futile. The application was dismissed with costs to the Plaintiff only, with liberty noted to obtain lawful letters of administration and pursue an appeal.

Key legal issues

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01

Whether the Applicant could be substituted for the deceased 1st Defendant on the strength of a Limited Grant obtained by Miscellaneous Application

Holding

Substitution was refused because the Limited Grant was irregularly obtained and did not comply with Cap 160 and the Probate and Administration Rules

Reasoning

Section 54 of the Law of Succession Act and Rule 14 of the Fifth Schedule, read with Rule 12 of the Probate and Administration Rules, require an application for a limited grant to be brought by petition supported by affidavit evidence before the High Court or a magistrate's court within jurisdiction. The Applicant instead obtained the grant through a Notice of Motion in a miscellaneous application whose parties were himself and the deceased 1st Defendant. That procedure was irregular and could not lawfully appoint him administrator or representative of the estate.

p. 6
02

Whether the judgment of 29.07.2025 could be reviewed and set aside

Holding

Review was refused: no Order 45 ground was made out and the suit against the deceased 1st Defendant had abated on 28.10.2021

Reasoning

The Court found the application could not be pinned to any of the three grounds for review. The grievances raised went to the merits of the judgment, not to new evidence or error apparent on the face of the record. Further, no substitution application was made within one year of the 1st Defendant's death on 27.10.2020, so the suit abated on 28.10.2021 under Order 24 Rule 4(3). Review, even if granted, would create no surviving cause of action and would be futile. The proper remedy was to obtain lawful letters of administration and file an appeal.

p. 9

Legal principles established

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  • A Limited Grant must be sought by way of a substantive petition in the form prescribed by the Law of Succession Act, Cap 160 and the Probate and Administration Rules; it cannot be obtained through a miscellaneous Notice of Motion
  • Where no application for substitution of a deceased defendant is made within one year of death, the suit abates as against that defendant
  • An applicant for review must clearly identify one of the three grounds in Order 45: discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason
  • A court that has pronounced judgment becomes functus officio as to the dispute; the remedy of an aggrieved party is appeal

Court orders

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  1. 1.The Notice of Motion Application dated 10.11.2025 is not merited and therefore dismissed
  2. 2.The Applicant is condemned to pay costs of the Application to the Plaintiff only

Authorities

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Legislation

  • Law of Succession ActSection 54
  • Law of Succession Act, Cap 160Fifth Schedule, Rule 14
  • Probate and Administration RulesRule 12
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure Rules, 2010Order 24 Rule 4
  • Civil Procedure Rules, 2010Order 1 Rule 13(1) and (2)
Jurisdiction invoked
Inherent review jurisdiction of the trial court under Order 45 Rule 1 of the Civil Procedure Rules, 2010; substitution governed by Order 24 Rule 4 of the Civil Procedure Rules, 2010 and the Law of Succession Act, Cap 160

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, "Muge (Suing as the Administrator of the Estate of John Kimugge Kessei (Deceased)) v Kipkabus & 7 others (Environment and Land Case 888 of 2012) [2026] KEELC 3274 (KLR)", Case Analysis (2026). Notice of Motion dated 10.11.2025 (Eldoret ELC suit, judgment of 29.07.2025 under review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3274/eng@2026-05-26

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