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ELCAllowedELC Civil Appeal No. E073 of 2024· [2026] KEELC 5216 (KLR)

Kabucu (Suing on her behalf and as the Estate Manager of David Kabucu Mwagi) v Migwi (Environment and Land Civil Appeal E073 of 2024) [2026] KEELC 5216 (KLR)

Environment and Land Court
31 July 2026
LLL.T. Lewa
609 words in judgment
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The bottom line

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When a party to a Kenyan court case dies, their estate must be substituted within 12 months or the case automatically dies with them.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court determines a Notice of Motion dated 1st April 2026 brought by Anne Waruguru Kabucu, the respondent in the appeal, seeking two orders: that the appeal be struck out as abated, and that costs of the application be borne by the appellant. The application was supported by her affidavit dated 1st April 2026 and was unopposed, the respondent side having filed no response. The applicant's case was that the appeal was filed on 16th December 2024 against the respondent, that the appellant died on 29th December 2024, and that no substitution by the estate had taken place. The court, L.T. Lewa J, framed a single issue: whether the motion could grant as prayed. Relying on Order 24 Rules 3 and 4 of the Civil Procedure Rules, which provide for substitution upon the death of a party and mandate that where no application is made within one year the suit abates against the deceased party, the court confirmed from the annexed death certificate that the appellant died on 29th December 2024. No application for enlargement of time, substitution or revival had been filed since then. Holding the substitution requirement mandatory, the court found the motion meritorious and allowed the prayers. The appeal was struck out as abated, costs were awarded to the applicant as sought, and the file was closed. The ruling was delivered virtually on 31st July 2026, with no appearance for the appellant and Mr. Mwangi Maina appearing for the applicant.

Key legal issues

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01

Whether the appeal abated upon the death of the appellant

Holding

The appeal abated because the appellant died on 29th December 2024 and no application for enlargement of time, substitution or revival was made within twelve months.

Reasoning

The court confirmed from the death certificate annexed that the appellant died on 29th December 2024. Order 24 Rules 3 and 4 of the Civil Procedure Rules govern substitution upon death and prescribe a mandatory twelve-month window. Since no substitution or related application was ever filed, the appeal stood abated and the motion to strike it out was merited.

p. 4

Legal principles established

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  • Under Order 24 Rule 4 of the Civil Procedure Rules, where a sole defendant (or sole surviving defendant) dies and the cause of action survives, the court shall cause the legal representative to be made a party on application, and if no application is made within one year the suit abates as against the deceased defendant.
  • Substitution in place of a deceased claimant is mandatory within twelve months of death; failure results in abatement and striking out.

Court orders

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  1. 1.The appeal is struck out as it has abated
  2. 2.Costs of the application borne by the Appellant
  3. 3.The file is closed
On appeal from
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null
Jurisdiction invoked
Order 24 Rules 3 and 4 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, "Kabucu (Suing on her behalf and as the Estate Manager of David Kabucu Mwagi) v Migwi (Environment and Land Civil Appeal E073 of 2024) [2026] KEELC 5216 (KLR)", Case Analysis (2026). ELC Civil Appeal No. E073 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5216/eng@2026-07-31

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