Kitavi & 4 others v Kilungu (Environment and Land Case 232 of 2017) [2025] KEELC 18693 (KLR) (31 July 2025) (Ruling) Neutral citation: [2025] KEELC 18693 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MAKUENI ENVIRONMENT AND LAND CASE 232 OF 2017 EO OBAGA, J JULY 31, 2025 BETWEEN SAMMY KITALI KITAVI .................................................................... 1ST PLAINTIFF JOSHUA MAWEU KILONZI .............................................................. 2ND PLAINTIFF STEPHEN MAUNDU .......................................................................... 3RD PLAINTIFF AND ALLAN MBATHA MAWEU .............................................................. 1ST APPLICANT DAVID NDOLO MAWEU ................................................................ 2ND APPLICANT AND AIMI MA KILUNGU ............................................................................. DEFENDANT RULING 1. 2. This is a ruling in respect of a Notice of Motion dated 7th June, 2023 in which the Applicant seeks the following orders: 1. That the suit for the 2nd Plainti, Joshua Maweu Kilonzi (Deceased) that has a bated be revived. 2. That this honourable court be pleased to substitute the 2nd Plainti herein Joshua Maweu Kilonzi (now deceased) with Allan Mbatha Maweu and David Ndolo Maweu (the legal representative of the deceased) 3. That the costs of this application be provided for. The Applicants state that they are sons of the 2nd Plainti (Deceased) who had led this suit together with two others against the Defendant. The case was led in Nairobi and was transferred to Makueni. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18693/eng@2025-07-31 1
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3. The Applicants’ father died on 14th February, 2014 but due to their ignorance of the law, they assumed that the two surviving Plaintis would proceed with the suit on behalf of the deceased. The Applicants were being represented by the rm of Nathan Mbulo & Associates while the case was in Nairobi. They later engaged the rm of Manthi Masika & Co. to act for them. While this new lawyers were preparing for the hearing of the case, they realized that the deceased had passed on. It is at this time that the lawyers informed them that they needed to have the suit revived and substitution done. 4. The Applicants state that they now have a grant of letters of administration ad litem and they wish to pursue the case on behalf of the Estate of the deceased. They state that delay in substitution was caused due to disagreements in the family as to who was to take out letters of administration. 5. I have considered the Applicant’s application as well as their submissions. Order 24 Rule 7 of the Civil Procedure Rules provides as follows: 6. 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 ocial 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 sucient 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. The Applicants have been candid to say that it was due to ignorance of the law that they did not substitute the deceased until the case abated. Their erstwhile lawyers did not advise them. When they took another rm of advocates, it was discovered that the suit had abated and there was need to revive the suit and substitute the deceased. I therefore nd that there is sucient cause shown why substitution was not done. I accordingly allow the application in terms of prayer 1 and 2. The Plaint to be amended within 14 days to reect the new changes. Costs of the application shall be in the cause. It is so ordered. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY, 2025. ......................................... HON. E. O. OBAGA JUDGE In The Presence Of: Ms. Mjambili for Mr. Masika for Plainti Court Assistant – Steve Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18693/eng@2025-07-31 2
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