Waweru & another v Njuguna (Environment & Land Case 140B of 2021) [2025] KEELC 4575 (KLR)

court process. It is her position that the application has been filed after inordinate delay and that it is an afterthought intended to circumvent the expeditious disposal of this matter. 6. The court directed that the application be canvassed be disposed of through written submissions which direction was duly complied with by both parties. 7. Having carefully perused the application, the response in opposition and the parties’ respective submissions, the key issue for determination is whether the application dated 15th August 2023 is merited. Analysis and Determination 8. The present Application seeks to have the Applicants joined in this suit in place of Naomi Wanjiku Waweru (Deceased) on the strength of letters of administration obtained on 8th September 2014. 9. The Application for substitution was filed on 15th August 2023, nearly a decade after the Grant of Letters of Administration was obtained. 10. The Applicants contend that every litigant is entitled to their day in court; a right so fundamental that it forms the bedrock of fair adjudication. They further assert that the present Application was made without undue or inordinate delay. 11. However, this assertion, while invoking the noble principle of audi alteram partem, must be weighed not merely against abstract ideals but in light of the factual chronology of events and the conduct of the Applicants themselves. 12. Order 24 of the Civil Procedure Rules, 2010, stands as the legislative beacon guiding the court when the hand of mortality interrupts the course of justice by claiming one or more of the parties to a suit. It delineates, with clarity the procedural roadmap to be followed in such an event. 13. Specifically, Order 24, Rule 3 addresses the situation where one of several plaintifis, or a sole plaintifi, passes away. The provision states: “ 1. Where one of two or more plaintifis dies and the cause of action does not survive or continue to the surviving plaintifi or plaintifis alone, or a sole plaintifi or sole surviving plaintifi dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintifi to be made a party and shall proceed with the suit. 2. Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased plaintifi is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintifi: Provided the court may, for good reason on application, extend the time.” 14. Moreover, Order 24, Rule 7 elucidates the legal consequences fiowing from abatement or dismissal occasioned under this Order: “ 7. (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4575/eng@2025-06-17 2

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2) The plaintifi or the person claiming to be the legal representative of a deceased plaintifi or the trustee or oficial receiver in the case of a bankrupt plaintifi may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, if it is proved that he was prevented by any suficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit.” 15. Thus, while the law draws a firm line against the resurrection of claims long laid to rest, it leaves ajar a narrow but purposeful door through which only those who can demonstrate genuine impediment, rather than mere neglect, may pass and seek the grace of the Court in reviving a suit otherwise destined for procedural oblivion. 16. The Applicants herein have indeed sought an order for substitution. However, it is beyond dispute that by the time this Application was brought before the Court, the suit had already abated, the statutory period of one year having long lapsed from the date of the Deceased’s demise which occurred on 7th December 2012. The passage of time had rendered the suit procedurally defunct in the eyes of the law. 17. Accordingly, in keeping with the provisions of Order 24 Rule 7(2), the Applicants were first required to seek the revival of the abated suit before inviting the Court to entertain an application for substitution. Procedural sequence is not a matter of mere formality, but a safeguard of judicial order, and where a suit has abated, substitution cannot precede restoration. 18. Regrettably, the Applicants have failed or otherwise neglected to confront the fundamental issue at the heart of this Application: that the suit had abated by operation of the law. 19. This omission is not a mere oversight but a substantive lapse, for without addressing the legal consequence of abatement, the foundation upon which their Application rests remains infirm. The Court cannot be invited to act as though the suit remains alive when the Applicants themselves have not taken the requisite steps to breathe life back into it. 20. Learned counsel for the Respondent submits that the suit, having abated on 8th December 2013, ceased to have any legal life and is therefore not amenable to substitution. 21. Order 24 of the Civil Procedure Rules was extensively addressed by the Court of Appeal in Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others [2017] eKLR in the following terms: “ Where a suit abates, no fresh suit can be brought on the same cause of action because it is extinguished and cannot be maintained in the form it was originally presented. Because the suit will only abate where, within one year of the death of the plaintifi no application is made to cause the legal representative of the deceased plaintifi to be joined in the proceedings, it is imperative and we may add, logical, where the legal representative is not so joined within one year, that an application be made for extension of time to apply for joinder of the deceased plaintifi’s legal representative. It is only after the time has been extended that the legal representative can have capacity to apply to be made a party. Order 24 must be construed by reading it as a whole and the sequence in which it is framed must be followed without short circuiting it. The proviso to rule 3(2) to the efiect that the court may, for good reason on application, extend the time goes to show that without time being extended, no application for revival or joinder can be made. It is the efiuxion of time that causes the suit to abate. It is that time that must, first be extended. Once time has been enlarged, only then https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4575/eng@2025-06-17 3

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can the legal representative bring an application to be joined in the proceedings. Again it is only after the legal representative has been joined as a party that he can apply for the revival of the action. In our view there is nothing objectionable to making an omnibus application for all the three prayers. But it is incompetent to seek joinder or revival when the prayer for more time to apply has not been granted…”(emphasis mine) 22. The Court of Appeal’s exposition leaves no room for ambiguity: where a suit has abated by operation of law, any attempt to leapfrog the procedural safeguards laid down under Order 24 is not merely irregular but legally untenable. 23. The Applicants, in seeking substitution without first securing an extension of time or reviving the abated suit, have efiectively failed to anchor their Application within the confines of the law. 24. I must add that litigation is governed not merely by the merits of a party's cause but equally by adherence to the procedural architecture that gives coherence and predictability to the judicial process. 25. The rules under Order 24 are neither ornamental nor optional; they are binding prescriptions that must be observed to safeguard the integrity of proceedings where a party has died. To disregard them is to invite disorder and to erode the discipline required of litigants who seek the court’s intervention. 26. It should be noted that the mere invocation of Article 159(2)(d) of the Constitution does not confer upon the Applicants a license to circumvent the clear and mandatory procedural requirements enshrined in the Civil Procedure Rules. 27. The Applicants’ failure to seek revival before moving for substitution is not a mere procedural oversight but a fundamental fiaw that strikes at the very heart of their Application. The law is clear and unyielding; a suit that has abated ceases to exist in the eyes of the Court and cannot be resuscitated through substitution alone. Without first restoring the suit to life by proper application, the notion of substitution is rendered a hollow exercise. 28. In light of these settled principles and having regard to the clear dictates of the law, I find no merit in the Application. 29. Accordingly, the Application dated 15th August 2023 is hereby dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED VIRTUALLY, AT THIKA THIS 17TH DAY OF JUNE 2025. …………………….. J. M. ONYANGO JUDGE In the presence Miss Wainaina for Ms Machua for the Plaintifis Mr. Njuguna for the Defendant Court Assistant: Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4575/eng@2025-06-17 4

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