Sairi

Environment and Land Court Act and Order 17 Rules 2(6) and Order 24 Rules 7 of the Civil Procedure Rules, 2010. The plainti seeks the following orders: 1. Spent. 2. This Honourable Court be pleased to set aside the Ruling of 14th May, 2024 dismissing the suit for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules. 3. This honourable court be pleased to extend time within which to apply for substitution of the late Lengur Ole Sairi (deceased) 4. This honourable Court be pleased to revive and reinstate the suit for hearing and determination. 5. The Honourable Court be pleased to allow the substitution of the late Lengur Ole Sairi (deceased) with Stanley Lerinkon Saire. 6. Costs of this Application be provided for. 2. The Application, grounded on the facts set out on its face, is supported by the Adavit of Stanley Lerinkon Saire, sworn on 11th April 2025. In the adavit, the Deponent states that he is the biological son of the late Lernangur Ole Sairi. The Deponent arms that following the death of Lernangur Ole Sairi on 27th July 2021, he was subsequently issued with a Rectied Limited Grant of Letters of Administration ad Litem on 31st January 2023, authorizing him to prosecute the suit on behalf of the deceased’s estate. However, although the Deponent had signed an application to substitute the deceased in the suit, it was never led or pursued. This failure arose from a communication breakdown between him and Advocate Ezekiel Munywa, who had been handling the case. The Deponent further states that on 3rd March 2025, he learned that the matter had been reassigned to another advocate, as the previous counsel had since left the law rm. 3. The Applicant contends that the estate of the deceased should not be penalized for the mistakes of their former counsel, as the failure to prosecute the suit was neither intentional nor deliberate but resulted from the inaction and professional oversight of the lawyer. For instance, the counsel failed to inform them of his non-appearance at several court mentions and did not le the necessary application for an extension of time to eect the substitution of the deceased. 4. The Deponent asserts that the deceased’s estate is entitled to continue prosecuting this suit to recover the disputed properties, which include L.R. KAjiado/olchoro-onyore/8727, 8728, 8729, and 8730, and are currently at risk of further alienation. The deceased had instituted the suit against the Defendants to protect these properties, which were allegedly fraudulently transferred to the Defendants, despite never having been lawfully disposed of to them. Accordingly, in the interest of justice, equity, and fairness, the matter should be heard and determined on its merits rather than dismissed due to procedural lapses. Given the serious and triable issues of fact and law raised, the Deponent arms that he is ready and willing to continue prosecuting the matter without undue delay. 5. On the basis of the foregoing, the Deponent urges the Court to exercise its discretion and allow the Application, as the Defendants will not be prejudiced. In contrast, the rightful beneciaries of the deceased estate would suer grave injustice if the disputed properties continue to be alienated without the matter being adjudicated on its merits. Furthermore, they face the risk of enduring irreparable loss due to further alienation, encroachment, or misuse of the suit properties by the Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18599/eng@2025-12-11 2

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6. The 1st Defendant opposes the Application through the Replying Adavit of its Legal Ocer, Augustine Sekeyian, sworn on 21st July 2025, while the 4th and 8th Defendants led their opposition via the Counsel Adavit of Laban Kipchirchir Kirui, sworn on 20th June 2025. The Adavits, which mirror each other, indicate that the 1st, 4th, and 8th Defendants seek dismissal of the Application with costs, arguing that it is unmerited, misconceived, and constitutes an abuse of court process. 7. It is armed that the Applicant’s counsel failed and neglected to apply for the substitution of his client in these proceedings, which resulted in the suit abating under Order 24 Rule 3 of the Civil Procedure Rules. Furthermore, the Applicant did not provide any valid reasons, despite having been served with a Notice to Show Cause as to why the suit should not be dismissed for want of prosecution. 8. The 1st, 4th, and 8th Defendants contend that the Applicant’s claims of miscommunication with his former counsel are vague and unsustainable, as they are unsupported by evidence. They further note that no explanation has been provided as to why the application for substitution was not led within the statutory one-year period. According to the Defendants, attributing the delay and inaction to the counsel is unjustied, since the Applicant bore the primary responsibility of monitoring and prosecuting the suit. 9. Consequently, the 1st, 4th, and 8th Defendants maintain that the dismissal of the suit by the ruling delivered on 14th May 2024 was justied, as it served the overriding objective of the Court. They further submit that, considering the time and resources expended on this matter since 2020, reviving the suit would cause them prejudice. 10. The Applicant’s response to the assertions of the 1st, 4th, and 8th Defendants is set out in the Supplementary Adavit of Stanley Lerinkon Saire, sworn on 13th August 2025. In the adavit, he reiterates his earlier averments and maintains that the requirements for review and extension of time under Order 23 Rule 7(2) of the Civil Procedure Rules have been satised. He contends that the proprietary rights of the estate can only be adequately protected if the suit proceeds on its merits. 11. The Applicant contends that the court record shows that the matter was mentioned on several occasions between 21st March 2023 and 24th April 2024, following his appointment as administrator of the deceased estate. Regarding the argument that reviving the suit would prejudice the 1st, 4th, and 8th Defendants, the Applicant submits that any such prejudice can be compensated through costs if necessary. In contrast, the deceased estate would suer irreparable loss if it permanently loses the suit property, which is the subject of a substantive claim in the Plainti’s suit. Courts directions 12. Subject to the directions of this court, the Application was dispensed with by way of written submissions. This directive was fully adhered to by the learned counsel representing the Plainti/ Applicant as well as the 1st, 4th and 8th Defendants. Issues for determination 13. The singular issue that arises for determination is whether the Applicant has made out a case and met the legal threshold for leave to revive an abated suit, to eect substitution, and to participate in these proceedings. Analysis and Determination 14. The Plainti, Lernangur Ole Sairi, instituted this suit against the Defendants by way of a Plaint dated 15th September 2020. Throughout the proceedings, the Plainti was represented, according to court https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18599/eng@2025-12-11 3

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records, by Rachier & Amollo Advocates LLP. The specic counsel who handled the Plainti’s suit until its dismissal from the rm was Advocate Ezekiel Munywa. The court record further indicates that on 3rd November 2021, all parties were absent when C.A. Ochieng J. delivered a ruling regarding the Plainti’s Notice of Motion dated 15th September 2020. Subsequently, on 1st December 2021 and 14th March 2022, directions were issued for the court bailis to serve a Notice to Show Cause on the Plainti, requiring him to explain why the suit should not be dismissed. 15. Prior to the dismissal of the Plainti’s suit on 14th May 2024, the matter had been listed for mention on four occasions. A careful review of the ruling delivered on that date shows that it did not address, nor was it related to, the 4th and 8th Defendants’ Notice of Motion dated 19th March 2024, which sought a declaration that the suit be deemed and declared abated following the lapse of one year after the Plainti’s death. Although the Application was served on the Plainti’s counsel, as evidenced by the Adavit of Service of Agrrey Muhemberi Avumba sworn on 24th April 2025, it was never prosecuted. Nonetheless, the suit had already abated as at 27th July 2022, one year after the Plainti’s demise. 16. Order 24 Rule 7 of the Civil Procedure Rules, which forms the basis of the Plainti/Applicant’s Application, provides guidance regarding the reinstatement of an abated suit as follows: 17. “ (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plainti or the person claiming to be the legal representative of a deceased plainti or the trustee or ocial receiver in the case of a bankrupt plainti 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 sucient 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 t.” Further, Order 24 Rule 2 of the Civil Procedure Rules provides as follows: “ Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant 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 defendant to be made a party and shall proceed with the suit. Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. Where within one year no application is made under sub rule (1), the suit shall abate as against the deceased defendant.” 18. The Court of Appeal has outlined the circumstances under which an abated suit may be reinstated as follows in Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others [2017] KECA 544 (KLR) was as follows: “ 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 plainti no application is made to cause the legal representative of the deceased plainti 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 plainti’s legal representative. It is only after the time has been extended that https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18599/eng@2025-12-11 4

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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 eect 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 euxion of time that causes the suit to abate. It is that time that must, rst be extended. Once time has been enlarged, only then 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.” 19. It is undisputed that Lernangur Ole Sairi passed away on 27th July 2021. Subsequently, the Applicant, Stanley Lerinkon Saire, was appointed as his personal representative to prosecute and manage this suit through a Rectied Limited Grant of Letters of Administration Ad Litem, issued on 31st January 2023 by the Kajiado High Court in P&A E016 of 2022. Additionally, by an order issued in ELCC/61/2020, M.N. Gicheru J. directed Mr. Munyua, the learned counsel for the Plainti, to appoint a legal representative for the deceased. 20. Despite non-compliance with the earlier order, Mr. Munye requested the Court on 24th April 2024 to allow him to continue prosecuting the Plainti’s suit, arguing that it was in the interest of justice as he had established contact with the Plainti’s relatives. This submission followed an application by Mr. Kirui, counsel for the 4th and 8th Defendants, seeking dismissal of the Plainti’s suit. When the suit was dismissed on 14th May 2024, Mr. Munye was present in court. Since that dismissal, the Plainti’s suit has been prosecuted by Mr. Wakwaya of Rachier & Amollo Advocates LLP. 21. M.N Sila J in Kamau Kania v Patrick Rerimoi & 2 others [2017] KEELC 34 (KLR) reasoned as follows in respect of circumstances under which an abated suit can be revived: “ A person may thus apply to revive an abated suit, upon satisfying the court that he was prevented from sucient cause from continuing the suit. The grant of an order to revive an abated suit is therefore not automatic. The court must be satised that there is good reason why no application to continue the suit was made within one year.” 22. The Applicant contends that the failure to eect his substitution in this proceeding following the demise of Lernangur Ole Sairi was due to the oversight of his former counsel, who did not advise him of the consequences of an abated suit. The Applicant’s inability to apply within the statutory period arose from circumstances beyond his control, namely the professional lapse and inaction of his former counsel. Given the substantive claim of the deceased estate and the risk of irreparable loss, the Applicant has demonstrated sucient cause, justifying the revival of the abated suit in the interest of justice. 23. Accordingly, I nd that the Notice of Motion application dated is merited and proceed to grant it as prayed, on the following terms: a. The Ruling delivered on 23rd May,2023 dismissing the suit for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules is hereby set aside. b. Time is extended within which Stanley Lerinkon Ole Sairi shall apply for substitution of the late Lengur Ole Sairi (deceased) c. The Plainti suit is hereby revived and reinstated for hearing and determination. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18599/eng@2025-12-11 5

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d. STANLEY LERINKON OLE SAIRI is hereby allowed to substitute the late Lengur Ole Sairi (deceased) with Stanley Lerinkon Saire. e. The 1st, 4th and 8th Defendants are awarded the costs of this application. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 11TH DAY OF DECEMBER 2025. M.D. MWANGI JUDGE In the virtual presence of: Ms. Wawira h/b for Mr. Wakwaya for the Plainti/Applicant Mr. Mwangi h/b for Mr. Nyaosi for the 1st Defendant Mr. Kirui for the 4th and 8th Defendants N/A by the 2nd – 3rd & the 5th -7th Defendants Court Assistant Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18599/eng@2025-12-11 6

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