Muthua v Wambugu (Suing as the Personal Representative of Daniel Wambugu Githinji – Deceased vide Succession Cause No.28 of 2017) & 5 others (Environment and Land Appeal E012 of 2024) [2026] KEELC 3610 (KLR)

2. b. The Learned Trial Magistrate misdirected herself and erred both in fact and in law by holding that the 1st Respondent had demonstrated suficient cause to warrant an extension of time to substitute the deceased Plaintifi after the suit had abated upon the expiration of one year from the Plaintifi's death. c. The Learned Trial Magistrate misdirected herself and erred both in fact and in law by finding that the 1st Respondent may proceed and substitute the deceased Plaintifi after the one year following the Plaintifi's death. d. The Learned Trial Magistrate misdirected herself and erred both in fact and in law by completely ignoring the Appellant's submissions and the authorities cited and provided, and therefore did not write a considered ruling on the substitution of the deceased Plaintifi more than one year after the Plaintifi's death. e. The Learned Trial Magistrate misdirected herself and erred both in fact and in law by failing to uphold precedent and the doctrine of stare decisis. f. The Learned Trial Magistrate erred in law by basing her ruling on a "cursory perusal" of the court record rather than on the parties' submissions. g. The Learned Trial Magistrate erred in law in delivering a Ruling that seemed more like channeling the 1st Respondent’s position rather than acting as an impartial Umpire. h. The Ruling delivered on 06.03.24 by Hon. F.K. Munyi is blatantly impartial and biased against the Appellant. The Appellants pray for the following orders: a. The Appellant's appeal is allowed. b. The whole of the Ruling delivered on 06.03.24 against the Appellant, allowing the 1st Respondent to substitute the deceased Plaintifi after the expiry of one year, is set aside. c. The 1st Respondent’s suit in the lower court be dismissed with costs to the Appellant. 3. The impugned ruling arose from the determination of the 4th Defendant’s preliminary objection, who is the Appellant herein, dated 16th October 2023, that the Notice of Motion dated 11th September 2023 is a nullity and ought to be struck out because the suit automatically abated on 1st June 2023. 4. The application, dated September 11, 2023, was filed by the Plaintifi and sought the reinstatement of the abated suit and an extension to substitute the deceased Plaintifi, to regularize the proceedings. 5. Parties filed written submissions on the application, and the trial court delivered its ruling on March 6, 2024. The Trial Magistrate found that the preliminary objection lacked merit because Counsel for the Plaintifi had sought leave to substitute the Plaintifi by an oral application on March 17, 2022, before the suit had abated, and dismissed the Appellant’s preliminary objection. This decision is the subject of the appeal. The Appellant’s written submissions 6. Counsel for the Appellant cited Order 24, Rules 3 and 7 of the Civil Procedure Rules, relied on the authority of Rebecca Mijide Mungole & Another v Kenya Power & Lighting Company Ltd & 2 others, Civil Appeal No. 283 of 2015 [2017] eKLR, and submitted that the Plaintifi in the trial suit died on 02 June 21, hence the suit automatically abated on or about 01 June 22. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3610/eng@2026-06-03 2

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7. Their submission is that the 1st Respondent herein filed the application for enlargement of time on 11 September 2023, which was 1 year, 3 months, and 23 days after the suit had abated, without providing any reasonable or suficient cause for failing to file the application for substitution of the Plaintifi within 1 year of the Plaintifi's death. 8. The Appellant contends that the order of substitution was made in error, was therefore unlawful, and ought not to have been entered. The 1st Respondent ought to have first sought the revival of the suit, since the suit had abated, before seeking to be substituted. 9. They highlighted that the 1st Respondent was appointed as a Legal Representative of the Estate of Daniel Wambugu Githinji (Deceased) on 16.06.22, pursuant to the Limited Grants of Letters of Administration Ad Litem. However, the 1st Respondent waited 1 year and 3 months before filing an application for an extension of time to file an application for substitution. 10. Regarding the 1st Respondent’s argument that he made the application for substitution orally and that the Court granted leave, the Appellant states that this cannot be traced or confirmed in the Court's records, and that no such orders were made. 11. The Appellant respectfully requests that the appeal be allowed and that the suit in the Lower Court be dismissed with costs, as the suit had already abated on June 1, 2022. The Respondents' written submissions 12. Counsel for the 1st Respondent submitted that upon the death of Erastus Kamara Wambugu on 2nd June 2021, the Respondent promptly applied for and obtained a Grant of Letters of Administration Ad Litem on 9th March 2022 in Succession Cause No. 29 of 2017. Subsequently, on 17th March 2022, the Respondent's counsel made an oral application for substitution before the trial court, which was granted, directing that the substitution proceed. 13. The Respondent submits that, contrary to the Appellant's submissions, the learned trial magistrate was correct in striking out the Appellant's Preliminary Objection dated 16th October 2023 because the objection lacked merit. Leave to substitute the deceased Plaintifi had been granted on 17th March 2022, well within the one year prescribed under Order 24 Rule 3(2) of the Civil Procedure Rules, thereby preserving the suit and rendering the Preliminary Objection legally untenable. 14. Counsel relied on the following authorities: Ndolo v Muturi & another (Environment & Land Case 192 of 2016) [2022] KEELC 3273 (KLR) (6 July 2022) (Ruling), Rebecca Mijide Mungole & Another v Kenya Power & Lighting Company Ltd & 2 Others [2017] eKLR. 15. Counsel submitted that the principles governing when a judgment can be set aside were considered by the Court of Appeal in Pithon Waweru Maina v Thuka Mugiria [1983] eKLR, stating that it is established law that the exercise of judicial discretion by a trial court should not be interfered with on appeal unless it is demonstrated that the honorable magistrate misdirected herself in law, misunderstood the facts, considered irrelevant factors, failed to consider relevant aspects, or that the decision is manifestly erroneous and has resulted in a miscarriage of justice. 16. The Respondent asserts that the Appellant has demonstrated no grounds for this Court to intervene, as the record of the trial court indicates that the learned magistrate exercised her discretion prudently and in compliance with legal standards. Furthermore, the Respondent respectfully requests that the Appeal be dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3610/eng@2026-06-03 3

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Analysis and determination 17. The Appellants herein express their dissatisfaction with the decision of the Trial Court to dismiss their preliminary objection, which contended that the suit had already abated, thereby rendering the Plaintifi’s motion to reinstate the suit and to substitute the Plaintifi null and void. The Plaintifi dismissed this preliminary objection, asserting that they had previously sought to substitute themselves by way of an oral application. 18. According to the ruling of the trial court, it was observed that the Plaintifi requested permission to substitute the Deceased Plaintifi on March 17, 2022; however, the record of appeal does not substantiate this claim. Moreover, there is no evidence to suggest that such a substitution was efiectuated before the abatement of the suit. 19. Assuming that substitution was not made before the Plaintifi filed their application dated September 11, 2022, we must determine whether substitution can be sought after a suit has already abated. 20. Order 24, Rule 3 of the Civil Procedure Rules provides as follows: “ 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) 21. 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.” This means that once the Appellant died on June 2, 2021, the Appeal abated after one year, on June 2, 2022. However, Order 24, Rule 7(2) further provides that: “ (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.” 22. The 1st Respondent, in his application dated 11th September 2022 herein, sought to have the suit reinstated, which can be assumed to be a prayer to have the suit revived under Order 24 Rule 7 above, which provides for the revival of a suit after it has abated. 23. Both parties relied on the Court of Appeal's decision in Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others [2017] eKLR, which addressed the issue of a legal representative reviving a suit after it had abated and held that: “ 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3610/eng@2026-06-03 4

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plaintifi dies and the cause of action survives or continues if no application is made within one year following his death. The Court of Appeal further noted that; “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 plaintifi no application is made to cause the legal representative of the deceased plaintifi 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 plaintifi’s legal representative. It is only after the time has been extended that 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 efiect 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 efiuxion of time that causes the suit to abate. It is that time that must, first 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.” 24. The 1st Respondent’s application was an omnibus application for all three prayers as drafted. Accordingly, the application was not a nullity if reinstatement/revival is granted, and the trial court did not err in dismissing the Appellant’s preliminary objection. 25. There is no justification to contest the decision of the trial court, as it was well-founded, and the application submitted by the 1st Respondent on 11th March 2022 possesses legal standing. As referenced by the 1st Respondent, the Court of Appeal in Pithon Waweru Maina v Thuka Mugiria [1983] eKLR stated: “ Thirdly the Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice. Mbogo v Shah [1968] EA 93. 26. Consequently, this Appeal lacks merit and is hereby dismissed, with costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN NYERI ON THIS 3RD DAY OF JUNE, 2026. E. K. MAKORI JUDGE In the presence of: Ms. Onyango for the 4th Respondent Kendi: Court Assistant In the absence of: Mr. Kipkorir for the Appellant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3610/eng@2026-06-03 5

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Ms.Kibe for 1st Respondent Mr. Gori for the 6th Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3610/eng@2026-06-03 6

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