Muniko & another v Waigoge & 3 others (Environment and Land Case E015 of 2020) [2026] KEELC 4231 (KLR)
The bottom line
#Kenya's High Court revived a widow's lapsed lawsuit and let her step in for her deceased husband, but she paid costs for filing late.
What this practically means
#Executive summary
#Key legal issues
#Procedural sequencing of prayers in an application concerning an abated suit
Extension of time must precede joinder/substitution, which must precede revival; however, an omnibus application containing all three prayers is permissible and the court elected, under Article 159(2)(d), to determine all prayers at once
The court adopted the Court of Appeal's guidance in Rebecca Mijide Mungole that the sequence in Order 24 must be followed without short-circuiting it: time must first be enlarged, then the legal representative joined, then revival sought. Although the applicant lumped the three substantive prayers together, the court exercised its discretion under Article 159(2)(d) to determine all the prayers in one application rather than strike out the application for procedural misjoinder.
Whether sufficient cause was shown for the delay in seeking substitution
Yes - the applicant's bereavement, possible illness and travel to Tanzania for treatment, together with her prompt action after obtaining the grant ad litem within four months of abatement, constituted sufficient cause
The applicant's sworn account of mourning and seeking treatment in Tanzania was uncontroverted by any countervailing evidence. The court accepted that loss of a spouse can cause deep emotional destabilization. It also weighed that she obtained the grant ad litem within four months of abatement and moved swiftly thereafter, holding the delay not so inordinate as to deny revival, against Article 159(2)(d) and the overriding objective. Comparison was drawn with Joseph Kirui, where revival was granted after 6½ years.
Whether the applicant should be substituted for the deceased plaintiff
Yes - the applicant held a limited grant ad litem issued on 19th June 2025 and moved the court within a month; she was substituted with liberty to amend within 14 days
The applicant annexed the limited grant ad litem issued on 19th June 2025 and applied for substitution within a month of obtaining it, demonstrating diligence and a genuine interest in prosecuting the deceased's estate's claim. The court granted substitution and required her to file the requisite amendment within fourteen days and serve the amended Originating Summons on the respondents.
Whether the Bill of Costs should be set aside
The prayer was premature and misconceived because taxation had not occurred, though the antecedent costs order was set aside upon revival of the suit
The court found the prayer to vacate the Bill of Costs premature since the court had not yet taxed the Bill and there was no legal bar to the respondents filing it while the abatement and costs order stood. However, upon allowing revival, the court set aside the orders of 17th February 2025 on abatement and payment of costs, which undermined the foundation of the Bill.
Legal principles established
#- Once a suit has abated it no longer exists; a party seeking to be joined in an abated suit must first seek and obtain extension of time/revival before moving for other substantive prayers such as substitution
- An abated suit may be revived under Order 24 Rule 7(2) where the applicant proves sufficient cause for not effecting substitution within one year
- A party alleging prejudice must demonstrate real, substantial prejudice, not merely assert it
- Costs follow the event under Section 27 of the Civil Procedure Act, subject to the court's discretion
Court orders
#- 1.Prayer 3 of the Notice of Motion dated 14th July 2025 allowed - the suit is revived
- 2.The orders of 17th February 2025 on abatement and payment of costs set aside
- 3.The applicant substituted in place of the deceased plaintiff
- 4.The applicant to file the requisite amendment to reflect the orders granted within fourteen (14) days and serve the amended Originating Summons on the Respondents
- 5.The applicant to bear the costs of the application
- 6.The matter to be mentioned on 16th July 2026 for confirmation of compliance with Order 11 of the Civil Procedure Rules
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 24 Rules 3 and 7 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muniko & another v Waigoge & 3 others (Environment and Land Case E015 of 2020) [2026] KEELC 4231 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4231/eng@2026-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.