Kitiyo & another v Mwoi & 2 others; Kitiyo (Intended Plaintiff) (Environment and Land Case 184 of 2016) [2026] KEELC 91 (KLR)

investigations by the driver, did they confirm the engagement of the current law firm in April 2024, by their late father. 4. Again, the applicant deposes that the file was not readily available at the registry, for it was in the judge's chambers for a pending ruling, thus impossible to peruse as per the letter dated 28/3/2024, marked JCK-(3). 5. The applicant deposes that he was informed by the advocate that he was meant to meet his late father on 23/8/2024 to issue clear instructions, especially the rulings delivered on 12/4/2024 and 21/5/2024, but unfortunately fell ill and passed on on 25/8/2024. 6. The applicant avers that the delay in taking action was occasioned by the fact that, as a family, they had to build a consensus on the way forward, on many issues, since their late father was polygamous and was also busy at work as per an annexed copy of the passport marked JCK-(4). 7. The applicant deposes that the court should accommodate the estate to avoid the beneficiaries being visited by some instabilities, since they are actually vulnerable. The applicant deposes that the suit was slated for mention on 6/11/2025, for directions on the hearing of the suit regarding the 2nd plaintifi. 8. The deponent says that the abatement of the suit would adversely afiect not only the 1st plaintifi’s estate, but also the 2nd plaintifi, since the 1st plaintifi had authorised the 2nd plaintifi to plead by an authority dated 16/12/2016 attached as JCK-(5). 9. The deponent states that all parties, save for the 3rd defendant, have already called their witnesses, the deceased had testified, and the inclusion will not derail the suit or occasion any prejudice to the defendants. 10. Similarly, the deponent avers that on 4/12/2024, the defendants’ case was re-opened and the 2nd defendant’s witness recalled for cross-examination, hence there will be miscarriage of justice if the application is not allowed, and the applicant allowed to cross-examine, not only the 1st plaintifi’s witness but also the 2nd plaintifi who rides on the 1st plaintifi’s case having donated authority to plead. Equally, the applicant deposes that he is willing to abide by any conditions issued by the court on the way forward. 11. The court record shows that this suit was filed on 20/12/2016, and after many attendances, the 1st plaintifi testified on 18/11/2021, and thereafter, the plaintifis’ case was closed on 22/7/2022. 12. The 1st defendant testified and closed his case, whereafter the 2nd and 3rd defendants called their first witness, who was stood down. By a ruling dated 21/5/2024, the court declined to reopen the plaintifis’ case at the defence stage and fixed the further defence hearing on 30/10/2024. 13. Before this, the court had also delivered another ruling on 12/4/2024, which elicited a notice of appeal dated 22/4/2024. There is no evidence that the 1st plaintifi appealed against the ruling of 21/5/2024. The said ruling at paragraphs 3 and 4, related to evidence by PW2 on behalf of the defunct Commissioner of Lands and the adduction of fresh evidence in the custody of the Land Administration Oficer. 14. At paragraphs 8 - 18 of the ruling, the court dwelt on the issues now raised in paragraphs 11 and 14 of the supporting afidavit sworn on 4/11/2025. The court shall revisit this issue. 15. Coming to the status of the matter, it is not true that the matter is at the 2nd plaintifi’s case. The record shows that on 3/10/2023, the plaintifis’ case was marked closed. DW1 took the witness stand and closed his defence on 3/10/2023. DW2, Elly Ogola, for the 2nd and 3rd defendants, took the witness stand on 3/10/2023 and was stood down for cross-examination on 4/12/2023. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/91/eng@2026-01-21 2

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16. At that juncture, the 1st plaintifi filed an application dated 28/11/2023. It led to a consent by parties to re-open the 1st defendant’s case for the 1st plaintifi to be allowed to cross-examine the 1st defendant as well as DW2. The consent was duly signed by the parties’ advocates on record. 17. The 1st plaintifi was thereafter given a chance to cross-examine, but opted to seek an adjournment, yet he had filed a notice of intention to act in person on 28/11/2023. The court record shows that the court reluctantly adjourned the defence for 22/2/2024. 18. Another application dated 1/12/2023 was placed for hearing on 22/1/2024 and later on 30/1/2024. The record shows that the 1st plaintifi appointed a law firm of K. Serebe & Co. Advocates to act for him, who sought an adjournment. 19. The court declined the adjournment. DW1 was recalled and cross-examined by the 1st plaintifi’s counsel on record, Mr. Serebe. 20. The record shows that at 4:00 p.m., DW2 was recalled for cross-examination. The witness was stood down on 22/2/2024 for further cross-examination on 12/4/2024. 21. Come 12/4/2024, the 1st plaintifi told the court that his lawyer, Mr. Serebe, was absent since he had, among other things, not perused the court file on account of a pending ruling. The 1st plaintifi also told the court that he had instructed another law firm to represent him as per documents dated 9/4/2024 and a letter dated 11/4/2024. 22. The court reluctantly allowed the adjournment and ordered that the notice of appointment be paid for and served. The matter was fixed for further defence hearing dates on 24/4/2024 and 21/5/2024. At this juncture, the 1st plaintifi brought an oral application for the calling of fresh evidence, which was declined by the court. 23. After the ruling, the 1st plaintifi sought typed proceedings for the way forward. On 30/10/2024, the court was informed of the death of the 1st plaintifi by Mr. Omaiyo, advocate. The case was adjourned to 16/12/2024 to confirm substitution. 24. The advocate for the 1st plaintifi did not attend court on 16/12/2024 to confirm the position. A further mention for 1/4/2025 was fixed by the parties; the 1st plaintifi counsel told the court that a Kitale Chief Magistrates Court Misc. Succession Cause No. E008 of 2025 had been filed and was due for mention in May 2025. 25. The court gave a mention for 12/6/2025 to confirm the progress of the substitution. Come 12/6/2025, the 1st plaintifi's counsel did not attend court. A notice to show cause was issued for 24/7/2025 when the 1st plaintifi’s counsel told the court that the estate had since obtained a limited grant ad litem dated 5/6/2025. 26. Learned counsel requested 14 days to seek substitution. At that juncture, learned counsels present for the defendants submitted that the suit had abated on account of the 1st plaintifi. The court fixed the matter for directions in regard to the 2nd plaintifi and defendants suit. 27. Having the foregoing background in mind, the question is whether the 1st plaintifi deserves the reliefs sought. What the 1st plaintifi is seeking is reinstatement of an abated suit, and substitution of the deceased party who passed on on 25/8/2024. 28. The law requires that the substitution be made before the expiry of one year after the death of a party. Therefore, the 1st plaintifi should have been substituted before 25/8/2025. This application was, however, filed on 5/11/2025, which is almost 3 months after the suit had abated. The grant ad https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/91/eng@2026-01-21 3

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litem was obtained on 4/6/2025. The court record shows that the matter came up for a mention on 12/6/2025. The applicant’s advocate did not attend court and use the opportunity to update the court on the progress. 29. On 24/7/2025, which was a month before abatement, the 1st plaintifi’s counsel was absent to confirm being in possession of a grant. The court gave a mention date of 2/10/2025. As soon as the applicant obtained the grant, he did not move the court before 25/8/2025, but waited until 2/10/2025. The application before the court was not even before the court by 2/10/2025. 30. The court had by then given directions as regards the 2nd plaintifi’s case in line with Order 24 Rule 3(1) of the Civil Procedure Rules. Order 24 Rule 3 (2) of the Civil Procedure Rules says that only for good reasons can time be extended. The applicant has not asked this court to extend the time, nor has he given a good reason why, while being in possession of a limited grant ad litem since 4/6/2025, he did not move the court before 25/8/2025. 31. In Said Sweilem Gheithan Saanum -vs Commissioner of Lands (being sued through Attorney General) & 5 others [2015] eKLR, the court was clear that there are three stages to be followed as per Order 24 of the Civil Procedure Rules, and for the extension of time, the legal representative must satisfy the court as to what prevented him from continuing with the suit. 32. An abated suit is one that ceases to exist in the eyes of the law after one year of the death. As held in Kemboi -vs- Macharia [2025], a nullity is a nullity. One cannot put something on nothing. Abatement takes place on its own by efiuxion of time. It is a legal consequence that fiows from the omission to take necessary steps within one year, to implead the legal representative of a deceased plaintifi. 33. The court has not been told what suficient cause prevented the 1st plaintifi’s legal estate administrator, despite obtaining a limited grant on 4/6/2025, from attending court on 12/6/2025 and 24/7/2025, and failing to meet the deadline of 25/8/2025. 34. Being busy at work and seeking the consensus of the beneficiaries by any stretch of imagination cannot sway the discretion of this court; it is clear that the 1st plaintifi's legal estate was disinterested in ensuring that the wheels of justice do not grind to a halt. 35. The application is not three-pronged. Extension of time must be sought first, based on suficient cause. In Rebecca Mijide Mungole & Another -vs- Kenya Power & Lighting Company Ltd & Others [2017] eKLR, the court held that the sequence of the application is set out in law, and if no application is made within a year, the cause of action no longer exists as the suit automatically abates. 36. In Kenya Farmers Co-operative Union Ltd vs Charles Murgor Deceased T/A Kaptabei Coffee Estate [2008] eKLR, the court said that purporting to hear and determine an abated suit is an act in futility. Similarly, in Wallace Kinuthia -vs- Anthony Ndungu Muongi & Others [2013] eKLR, the court cited Black's Law Dictionary that an abated suit ceases to exist in law. 37. In view of the foregoing, the court finds that the 1st plaintifi’s suit was extinguished on 25/8/2025. There are no prayers to extend time, based on suficient cause, as a basis of granting reinstatement out of time, and to allow the substitution. 38. Equally, even if the court were to be persuaded that there will be prejudice and need to re-open the 1st plaintifi’s suit, the court record bears witness that the circumstances of the file are that the 1st plaintifi has been out to derail and or delay the course of justice in this matter, which the 1st plaintifi’s counsel on record was privy to. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/91/eng@2026-01-21 4

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39. It is Mr. Omaiyo advocate, who first disclosed the death of his client on 28/10/2024, by a letter to the Deputy Registrar. The letter and the court record discount or discredit the contents of the supporting afidavit on paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16 by Jacob Cherirei Kitiyo to be entitled to the prayers sought. 40. The upshot is that I find no merits on the application dated 4/11/2025. It is dismissed with costs. 41. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE, THIS 21ST DAY OF JANUARY 2026. In the presence of: Court Assistant - Dennis Mr. Ndarwa for Kiarie for 2nd defendant present Omaiyo for the 1st plaintifi present Nyamu for the 1st defendant present Chilaka for the 2nd and 3rd defendants absent HON. C.K. NZILI JUDGE, ELC KITALE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/91/eng@2026-01-21 5

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