Imbogo v Imbogo & 3 others (Environment and Land Case E002 of 2024) [2026] KEELC 1638 (KLR)

3. The application was opposed. Chibeu Shamala Imbogo filed replying afidavit dated 15th July 2025. He stated that the application should not be allowed as there is no basis upon which the application can be allowed as it raises no cause of action. That the applicant is not a representative of the estate of the deceased plaintifi. 4. In a rejoinder, the applicant filed supplementary afidavit dated 12th November 2025. He stated that Christine Imbogo died on 19th June 2024 and that he took out grant of letters of administration for her estate. That he inadvertently failed to include the grant in his application. He attached copies of death certificate and grant of representation. 5. Parties filed submissions which the court has duly considered Analysis and determination 6. The court has carefully considered the application, response thereto and submissions. The only issue that arise for determination is whether the applicant deserves the orders sought. 7. Where a cause of action survives the death of a party, the court has power to grant orders for substitution of such deceased party whether it is a plaintifi or defendant; by granting orders to join the personal representative of the party’s estate. Order 24 Rules 1 to 4 provide as follows; Abatement by party’s death if right survives [Order 24, rule 1] 1. The death of a plaintifi or defendant shall not cause the suit to abate if the cause of action survives or continues. 2. Procedure where one of several plaintifis or defendants dies and right to sue survives [Order 24, rule 2] Where there are more plaintifis or defendants than one, and any one of them dies, and where the cause of action survives or continues to the surviving plaintifi or plaintifis alone or against the surviving defendant or defendants alone, the court shall cause an entry to that efiect to be made on the record, and the suit shall proceed at the instance of the surviving plaintifi or plaintifis, or against the surviving defendant or defendants. 3. Procedure in case of death of one of several plaintifis or of sole plaintifi [Order 24, rule 3] 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. 4. Procedure in case of death of one of several defendants or of sole defendant [Order 24, rule 4] 1. 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1638/eng@2026-03-04 2

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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. 2. Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. 3. Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant. 8. In the instant case, the late Christine ImbogO filed this suit in 2018. She passed away in 2024 before this suit was heard and determined. The applicant has produced both the death certificate and grant of representation and therefore this court is convinced that the cause of action survives the deceased and that the applicant deserves the orders sought. 9. In the premises, the application dated 20th February 2025 is merited and the same is hereby allowed. The deceased plaintifi Christine Makokha Imbogo is hereby substituted with the applicant herein Soita Imbogo. I make no order as to costs. 10. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 4TH DAY OF MARCH 2026 A. NYUKURI JUDGE In the presence of Mr. Masinde for the applicant Ms Imainata holding brief for Mr. Nyamu for the respondents Court Assistant: Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1638/eng@2026-03-04 3

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