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ELCDismissedELC NO. 76 OF 2011· [2026] KEELC 5302 (KLR)

Ngari v Miano & 2 others (Environment and Land Case 76 of 1000) [2026] KEELC 5302 (KLR)

Environment and Land Court
6 August 2026
1,302 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to revive a land case that was already decided before the defendant died, ruling concluded suits cannot 'abate'.

What this practically means

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Executive summary

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The Applicant, Mary Wangari Makari, widow of the deceased defendant Boniface Makari Miano, filed a Notice of Motion dated 15th October 2024 in ELC No. 76 of 2011 seeking revival of the suit, substitution of the deceased defendant with herself as legal representative, and setting aside of the orders of 17th June 2014 and/or extension of time for substitution. She deposed that the defendant died on 17th December 2020, that she had been in possession of the suit land since 1980, and that she only learned of the suit and orders in May 2022. The Plaintiff/Respondent opposed, contending that judgment had been delivered on 28th June 2013 while the deceased was alive, that no appeal was filed, that the application was brought nearly three years after the death, and that it offended Order 24 Rule 4(3) and lacked locus standi. The court (E. K. Makori J) held that since judgment was delivered while the defendant was alive, the suit never abated and there was nothing to revive; Order 24 abatement applies only to suits pending determination, as applied from Samuel Matheri Githen v Lawrence Mwaura. The court further found the Applicant's delay inordinate. The application was dismissed with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether the suit abated on the death of the defendant and could be revived

Holding

No. Judgment was delivered on 28th June 2013 while the defendant was alive, so the suit never abated and there is nothing to revive; Order 24 abatement applies only to suits pending determination.

Reasoning

The court applied Order 24 Rule 4 of the Civil Procedure Rules, noting that abatement arises only where a suit is pending against a deceased party. Since judgment had been delivered in 2013 during the defendant's lifetime, the cause was conclusively determined. No appeal was filed, so no revival could lie under Order 24. The court adopted the reasoning in Samuel Matheri Githen v Lawrence Mwaura to the same effect.

p. 7
02

Whether the Applicant's delay was inordinate

Holding

Yes. The deceased died on 17th December 2020 and the application was filed on 15th October 2024, nearly three years later, and the Applicant sought substitution of a party who was not even an applicant.

Reasoning

The court observed that the Applicant filed the application long after the defendant's death and now sought to substitute a deceased person who was not an applicant, while her earlier application of 14th February 2023 was a separate matter. The court regarded the delay as inordinate and supporting dismissal.

p. 8

Legal principles established

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  • A suit that has been heard and determined by judgment does not abate upon the death of a party, and Order 24 abatement provisions apply only to suits pending determination
  • Where judgment was delivered while the defendant was alive, there is no suit to revive upon his later death

Court orders

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  1. 1.The application dated 15th October 2024 is dismissed with costs to the Plaintiff/Respondent
Jurisdiction invoked
Environment and Land Court jurisdiction over ELC No. 76 of 2011; application under Order 24 Rule 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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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ngari v Miano & 2 others (Environment and Land Case 76 of 1000) [2026] KEELC 5302 (KLR)", Case Analysis (2026). ELC NO. 76 OF 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5302/eng@2026-08-06

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