Anwar v Mohamed Ashraf Cresco Investment Limited
The bottom line
#Kenya's Environment and Land Court confirmed that an abated land suit can be revived, and dismissed the defendants' attempt to undo that revival with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the court could revisit its order marking the suit as abated
Yes; the court retained discretion to revive the abated suit on sufficient cause under Order 24 Rule 7(2), and extension of time is available under Order 50
The court held that abatement is not an automatic or mechanical outcome and does not extinguish its jurisdiction. Order 24 Rule 7(2) permits revival on sufficient cause, and Order 50 permits extension of time. Article 159(2)(d) and sections 1A, 1B and 3A of the Civil Procedure Act mandate substantive justice. The applicant was served and given an interparties hearing opportunity but failed to attend, so the revival orders stand.
Whether the reinstatement and substitution were irregularly done ex parte
No; the application dated 20.8.2024 was served on the defendants' former law firm, re-served on current counsel, and directions given in counsel's presence; counsel's non-attendance meant the application was unopposed
The record shows the revival application was served, an interpartes date given in the presence of Mr Ashford Mugwuku, and counsel failed to appear on 21.11.2024. A party afforded a hearing who does not attend cannot later allege ex parte irregularity. Counsel was also on record for both defendants and estopped from denying representation of the 1st defendant.
Whether the defendants could deny service of summons and legal representation
No; the 1st defendant filed a statement of defence and both defendants were represented by the same firm, so they are estopped from denying service and representation
Summons to enter appearance is the mode of inviting a party to defend a suit. The 1st defendant filed a defence, and the notice of appointment dated 19.9.2016 showed one firm acting for both defendants. Any change of representation should have been notified by filing and serving a notice. Counsel who appeared for the estate after substitution cannot deny the substitution.
Legal principles established
#- An abated suit may be revived on sufficient cause shown under Order 24 Rule 7(2) of the Civil Procedure Rules; abatement does not render the court functus officio
- A party given an opportunity to be heard who fails to take it cannot later complain of being unheard
- A party who filed a defence is estopped from denying service of summons to enter appearance
- Procedural rules are handmaidens of justice and abatement cannot be used as a technical device to defeat substantive rights
Court orders
#- 1.The notice of motion dated 1.12.2025 is dismissed
- 2.Costs of the application awarded to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; inherent powers under sections 1A, 1B & 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anwar v Mohamed Ashraf Cresco Investment Limited", Case Analysis (2026). Environment and Land Case 316 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5757/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.