Wanyama (Suing as the legal representative of the Estate of Patrick Asembo Wanyama) v Mukudi & 2 others (Environment and Land Case 188 of 2017) [2026] KEELC 1950 (KLR)

4. The Applicant has now approached this Court vide her Notice of Motion dated 14th May 2025 and premised on the provisions of Order 24 Rule 3, Order 24 Rule 7 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. She seeks the following orders: 1. Spent 2. Spent 3. That a temporary injunction do issue restraining the Defendants/Respondents, their agents, servants or any other person acting under their instruction from acting, transferring, leasing, charging or in any other way dealing with the land parcel no SAMIA/BUJWANGA/1957 pending the hearing and determination of this suit. 4. That this Honourable Court be pleased to substitute the deceased Plaintifi with the Applicant the duly appointed legal representative of the Estate of the deceased. 5. That this Honourable Court be pleased to transfer this suit to Port Victoria Law Courts. 6. That the costs of this application be provided for. 5. The Motion is based on the grounds set out therein and supported by the Applicant’s afidavit. 6. The gravamen of the Motion is that the deceased instituted this suit in 2017 but passed away on 25th March 2021 before it was determined and thereby abated due to the lapse of time within which substitution should have been done. 7. The Applicant has since obtained a grant of Letters of Administration in respect of the Estate of the deceased following a delay which was due to un-avoidable circumstances including the fact that the Applicant did not know the number of this case and this file had gone missing. She wishes to prosecute this case to it’s logical conclusion and the same should be transferred to Port Victoria Magistrates Court which has both territorial and pecuniary jurisdiction to determine this suit. 8. The following documents are annexed to the Motion: 9. 1. Copy of the death certificate for the deceased. 2. Copy of confirmed Grant issued in respect of the deceased’s Estate on 11th October 2023 in Nairobi High Court Succession Cause No E3534 of 2022 (not Grant Ad Litem as per the supporting afidavit). 3. Letter dated 31st October 2024 and addressed to the Deputy Registrar by the Applicant’s counsel requesting that this file be traced. 4. Response by the Deputy Registrar dated 21st November 2024 confirming that the file No ELC 188 of 2019 is available in the registry. I Notice that the response refers to file No ELC 188 of 2019 (not 188 of 2017 which is this file). The Motion is opposed and the 1st Defendant has filed a replying afidavit dated 3rd October 2025 in which he has averred, inter alia, that the deceased died on 25th March 2021 and this Motion has been filed 4 years later. This suit abated on 24th March 2022 in accordance with the provisions of Order 24 Rule 3(2) of the Civil Procedure Rules and the reasons given by the Applicant for the delay of 4 years is a mere afterthought as the deceased had an advocate who could have advised him. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1950/eng@2026-04-09 2

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10. The Motion has been canvassed by way of written submissions. The same have been filed both by MR SALA instructed by the firm of Sala & Mudany Advocates for the Applicant and by Mr Juma instructed by the firm of J. V. Juma & Company Advocates for the Defendants. 11. I have considered the Motion, the rival afidavits and annextures thereto as well as the submissions by counsel. 12. I shall consider prayers NO 4 and 5 first because they have a bearing on the other prayers and if those prayers collapses, then the other prayers will also collapse. 13. Order 24 Rules 3 and 7(2) of the Civil Procedure Rules provide as follows: 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.” 7(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.” 14. It is not in dispute that the deceased died on 25th March 2021 as per the annexed copy of the death certificate. Therefore, in accordance with the provisions of Order 24 Rule 3(2) of the Civil Procedure Rules, this suit abated by operation of the law on 24th March 2022 which was within one year when the Applicant should have applied to be made the legal representative of the deceased and to substitute him in order to be clothed with the locus to revive this suit and prosecute it. It has taken her upto 4th May 2025 some 4 years later to file this Motion, a delay which is quite inordinate as stated by the Defendants. 15. The law, under Order 24 Rule 7(2) grants the Applicant a window to revive an abated suit but only if she can demonstrate “suficient cause” for not filing this Motion within one year from the date of the demise of the Plaintifi. I have checked the proceedings herein and noted that even after the demise of the Plaintifi, this case continued being mentioned. Although the abatement of the suit is by operation of the law and as a matter of course, it is good practice for the record to refiect the abatement and for the parties to be notified. In the case of Rebecca Mijide Mungole & Another -v- Kenya Power & Lighting Company Ltd & 2 Others C.A. Civil Appeal No 283 of 2015 [2017 KECA 544 KLR], the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1950/eng@2026-04-09 3

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Court of Appeal stated as follows while discussing the provisions of Order 24 Rule 3 and 7 of the Civil Procedure Rules: “ The sequence of the application under this procedure of what should happen in case of the death of a Plaintifi and the cause of action survives or continues, is plain. Speaking generally, by operation of the law, a suit will automatically abate where a sole Plaintifi or sole surviving Plaintifi dies and the cause of action survives or continues if no application is made within one year following his death. According to rule 3(2) the Defendant is only required to apply for an award of costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased Plaintifi. But as was observed by this Court in Said Sweilam (supra) the fact of abatement has to be brought to the Notice of the Court, proved and accordingly recorded in order for the Defendant to apply for costs. It means that even though the legal efiect of abatement may have already taken place, for convenience, an order of the Court is necessary for a final and efiectual disposal of the suit.” 16. The same Court then proceeded to consider what amounts to “suficient cause” that can support a prayer for revival of an abated suit. It said: “ After time to apply has been enlarged and the legal representative has been joined, the focus and burden shifts to him to show cause why the abated suit should be revived. A prayer for the revival of the suit cannot be allowed as a matter course or right. If the Applicant demonstrates and the Court is satisfied that he was prevented by any suficient cause from continuing the suit, the Court will allow the revival of the suit upon such terms as to costs or otherwise as the Court may think fit. The operating phrase in rule 7(2) “suficient cause” has been broadly and liberally defined, in order to advance substantial justice. Liberal construction should not be done with the result that one party is thereby prejudiced. When the delay is on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the Applicant, the Court will not revive the abated suit. If a party has been negligent or indifierent in pursuing his rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to him in law. The explanation has to be reasonable and plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but justifies exercising judicial discretion in favour of the Applicant.” 17. The term suficient cause was also defined in the case of Attorney General -v- Law Society of Kenya & Another 2017 eKLR as follows: “ Suficient cause or good cause in law means; … the burden placed by a litigant (usually by Court rule or order) to show why a request should be granted or an action excused, see Black’s Law Dictionary, 9TH Edition page 251 Suficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubts in a judge’s mind. The explanation should not leave unexplained gaps in the sequence of events.” The Applicant has produced a copy of the Confirmed Grant issued to her on 11th October 2023 in respect of the Estate of the deceased. It confirms that she is the Administrator to that Estate in which the suit land which is the only property of the Estate has already been distributed, to among others, the Applicant. I would have thought that the Confirmed Grant should bring the issue to an end. But that is https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1950/eng@2026-04-09 4

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not my mandate in this ruling. All I can say with reference to it is that the Applicant has demonstrated that she should be joined in this suit to substitute the deceased. That prayer is allowed. 18. With regard to the revival of the abated suit, the Applicant has not given any explanation as to why she did not apply for the Grant of Letter of Administration until she moved the Probate Court in the Probate Court NO E3534 of 2022 one year after the demise of the deceased in 2021. There is evidence from communication with the Deputy Registrar that indeed at some point between 31st October 2024 and 21st November 2024, the file was missing but it was eventually traced and the Applicant notified vide email dated 21st November 2024. But again the Applicant took no action to revive this suit until she filed the Motion dated 14th March 2025 which was later withdrawn and later, a Motion dated 30th April 2025 which was struck out. So between November 2024 when the Applicant was informed about the availability of this file in the registry and 14th March 2025 when she first approached this Court with the Motion, a period of 4 months, no explanation, reasonable or otherwise, has been put forward by the Applicant as to why she did not seek the revival of this suit having already obtained the Grant in respect of the Estate of the deceased. Then there is also the delay between 21st March 2021 when the deceased passed away and 2022 when she moved to the Probate Court, a delay of a whole year which she has not accounted for by providing suficient cause. Indeed no reason at all has been provided for the failure to move the Court within one year of the demise of the deceased as is provided in law. There is no reason, therefore, why this Court should exercise it’s discretion in the Applicant’s favour. And in the absence of any reason, this Court has no basis upon which to interrogate whether there is any “rational, plausible, logical, convincing, reasonable and truthful” justification for granting the Applicant the orders sought – Attorney General -v- Law Society Of Kenya (supra). Rather, this appears to be a case of “dilatory tactics, want of bone fides, deliberate inaction or negligence on the part of the Applicant” - Rebecca Mijide Mungole & Another -v- Kenya Power & Lighting Company Ltd (supra). Such conduct will not endear the Applicant to the Court to warrant the grant of the order of the revival of this suit. The Motion must therefore be dismissed. 19. With regard to costs, they follow the event. 20. The up-shot of all the above is that having considered the Notice of Motion dated 14th May 2025, this Court makes the following disposal orders: 1. The Motion is dismissed. 2. Costs to the Defendants. BOAZ N. OLAO JUDGE 9TH APRIL 2026 RULING DATED, SIGNED AND DELIVERED ON THIS 9TH DAY OF APRIL 2026 BY WAY OF ELECTRONIC MAIL WITH NOTICE TO THE PARTIES. BOAZ N. OLAO JUDGE 9TH APRIL 2026 Explanatory notes: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1950/eng@2026-04-09 5

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This ruling was due for delivery on 3rd March 2026. However, following my transfer to Iten Court, I had to prioritize my part heard cases and deliver judgments and rulings. That has contributed to the delay in delivering this ruling. The same is regretted. BOAZ N. OLAO JUDGE 9TH APRIL 2026 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1950/eng@2026-04-09 6

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