Sabai (Suing as the Legal Representative of the Estate of Peter Sabai Chacha- Deceased) v Nyangoko & another (Enviromental and Land Originating Summons 65 of 2021) [2026] KEELC 4146 (KLR)
The bottom line
#A son was allowed to take over his late father's land judgment, but the court stopped short of letting him seize a public school's land.
What this practically means
#Executive summary
#Key legal issues
#Substitution of a deceased decree holder
Substitution is not mandatory post-judgment, but the Applicant, holding a grant ad litem, is clothed with locus standi and substitution was merited.
Order 1 Rule 10 CPR does not provide for substitution of a deceased party; Order 24 governs death of parties and expressly excludes revival where a party dies post-judgment. Case law (Wangondu, Muoni Kiambi, Dhulla Harchand) confirms execution proceedings do not abate on the death of a decree holder. The Applicant obtained a limited grant on 29th December 2025 and under Section 2 of the Civil Procedure Act is the legal representative, so substitution was granted.
Jurisdiction to set aside the stay order and permit execution once a notice of appeal is filed
The Court lacks jurisdiction; the prayers were misplaced and improperly before the Court.
Order 42 Rule 6(4) deems an appeal filed upon notice of appeal, escalating the matter to the Court of Appeal. Only the Court of Appeal may strike out or deem a notice withdrawn under Rules 84 and 86, as illustrated in Irungu v Nairobi City Water & Sewerage Co Ltd. The High Court cannot arrogate to itself powers not donated by statute; the Applicant must move the proper court.
Public land status of school land and public interest in execution
School land is public land under Article 61; attachment requires consultation with the National Education Board and approval of the Cabinet Secretary; public interest of 2000 students weighs against execution.
The Respondents represent a public school subject to the Government Proceedings Act. Public schools cannot be converted to private status without NEB consultation and Cabinet Secretary approval, and the National Land Commission cannot allocate public land reserved for public purposes. No official search was provided on registration status, and the fate of 2000 students is at stake.
Legal principles established
#- Substitution of a deceased decree holder is not mandatory at the execution stage; execution does not abate upon the death of a decree holder.
- Upon filing of a notice of appeal, the matter is deemed to be an appeal before the Court of Appeal and the trial court loses jurisdiction over matters relating to the notice of appeal.
Court orders
#- 1.Peter Sabai Chacha, the deceased Plaintiff, be and is hereby substituted by Francis Sabai Ongera
- 2.Prayer 2 and prayer 3 are dismissed
- 3.Each party to bear their own costs
- 4.The Respondents are given 60 days to pursue the Appeal in the Court of Appeal
- 5.The Applicant's Counsel to forthwith serve the Attorney General with all documents in respect of this matter
- 6.Parties are at liberty to settle the matter amicably; mention on 7/9/2026 for further orders
- Jurisdiction invoked
- Articles 40, 48 and 50 of the Constitution; Sections 1A, 1B, 3A and 3B of the Civil Procedure Act; Order 1 Rule 10, Order 12 Rule 7 and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sabai (Suing as the Legal Representative of the Estate of Peter Sabai Chacha- Deceased) v Nyangoko & another (Enviromental and Land Originating Summons 65 of 2021) [2026] KEELC 4146 (KLR)", Case Analysis (2026). Homa Bay ELC OS No. 65 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4146/eng@2026-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.