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ELRCDismissedMotion filed 4 August 2016 (Naivasha)· [2025] KEELRC 977 (KLR)

Wanyeki & another v Attorney General (Miscellaneous Application 91 of 2016) [2025] KEELRC 977 (KLR)

High Court of Kenya
27 March 2025
642 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court dismissed a substitution application because it cited the wrong rule, was filed after judgment, and hid that fact from the court.

What this practically means

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Executive summary

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The applicant, administrators of the estate of Stephen Mwangi Wanyeki, a deceased plaintiff in Nairobi Cause No. 2212 of 2012 (WO1 Samuel Chege Gitau & Ors v Hon Attorney General), filed a Notice of Motion on 4 August 2016 seeking substitution of the deceased with the estate's administrators. The Motion was listed for hearing on several dates in 2024; on 28 October 2024 neither the applicant nor counsel attended, and after successive Notices to Show Cause the Motion was dismissed on 11 February 2025 when no party appeared. Counsel, Mr Agina, later explained he had technical difficulties joining the virtual court and was elsewhere in the High Court on the relevant date. The court, however, examined the primary file and found that the underlying cause had been heard and judgment delivered on 15 April 2016, before the Motion was filed, and that the applicant had not disclosed this. The court held that Order 24 Rule 7(2) of the Civil Procedure Rules, 2010, which governs revival of abated suits, was wrongly invoked; that the substitution application should have been filed in the primary file, where other parties had done so; and that the Motion was fatally defective because vacating the dismissal would serve no legal purpose. The Motion filed on 4 August 2016 was dismissed with no order on costs. Judgment delivered virtually at Naivasha on 27 March 2025 by Radido Stephen, Judge.

Key legal issues

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01

Whether Order 24 Rule 7(2) CPR 2010 was properly invoked

Holding

The Rule governs revival of abated suits and was wrongly invoked because the primary cause had been heard and determined on 15 April 2016, before the Motion was filed

Reasoning

The court examined the proceedings in Nairobi Cause No. 2212 of 2012 and found judgment had been delivered on 15 April 2016. The applicant moved the court on 20 July 2016, after judgment. Order 24 Rule 7(2) applies only to abated suits, not determined ones, so the procedural foundation of the Motion was misconceived and could not aid the applicant.

p. 2
02

Whether the dismissal of 11 February 2025 should be vacated and the Motion prosecuted

Holding

No - the Motion was fatally defective as it sought substitution after judgment in the primary cause, without disclosing that judgment, and was filed in the wrong file

Reasoning

Although counsel explained his non-attendance on 28 October 2024 (he was before the High Court in Petition No. 108 of 2019), the court held that even if the dismissal were vacated, the Motion would serve no legal purpose. Substitution applications belonged in the primary file, where other parties had in fact filed such applications per the CTS system.

p. 2

Legal principles established

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  • An application for substitution of a deceased party must be filed in the primary file where the main cause is pending, and a substitution application filed after judgment has been delivered and without disclosing that fact is fatally defective
  • Order 24 Rule 7(2) of the Civil Procedure Rules, 2010, dealing with revival of abated suits, cannot be invoked where the suit has already been determined

Court orders

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  1. 1.The Motion filed in Court on 4 August 2016 stands dismissed with no order on costs
Jurisdiction invoked
Inherent powers of the High Court over a related Notice of Motion; application anchored on Order 24 Rule 7(2) of the Civil Procedure Rules, 2010

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, "Wanyeki & another v Attorney General (Miscellaneous Application 91 of 2016) [2025] KEELRC 977 (KLR)", Case Analysis (2025). Motion filed 4 August 2016 (Naivasha). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/977/eng@2025-03-27

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