REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA ELC CIVIL APPEAL NO. E073 OF 2024 ANNE WARUGURU KABUCU(Suing on her own behalf and as the estate manager of DAVID KABUCU MWAGI..........................APPLICANT =VERSUS= THETU MWANGI MIGWI ...............................................RESPONDENT RULING 1. Falling for determination in this ruling is the Notice of Motion dated 1st April 2026 brought by Anne Waruguru Kabucu [referred to in this ruling as “the applicant”]. Through it, the applicant seeks the following verbatim orders: 1) That this Honourable court be pleased to strike out the appeal as it has abated. 2) That the cost of this application be borne by the Appellant. ELC CIV APPEAL NO. E073 OF 2024 – RULING Page 1
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2. The application was premised on the grounds set out on the face of the motion and the applicant’s supporting affidavit dated 1st April 2026. 3. The case of the applicant is that the appellant filed the appeal against the respondent on 16th December 2024. She contends that the appellant died on 29th December 2024 and no substitution has been done by the estate. The applicant further contends that it is in the interest of justice that the appeal is struck out as it has abated. 4. The respondent did not file any response. 5. Against this background, I am to make a finding on whether or not, the application, and by extension, the orders sought herein can grant as prayed. ANALYSIS AND DETERMINATION 6. I have considered the provisions of law upon which this motion sits. I have equally weighed on the averments made on the supporting affidavit deponed by the Respondent/Applicant. 7. Order 24 Rules 3 and 4 of the Civil Procedure Rules, provides for substitution in the event of death of a plaintiff or in ELC CIV APPEAL NO. E073 OF 2024 – RULING Page 2
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the event of death of a defendant, and applies to the scenario where a defendant to a counter-claim dies. 8. For avoidance of doubt, Order 24 Rule 4 of the Civil Procedure Rules states as follows: “ 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 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 sub rule(1), the suit shall abate as against the deceased defendant.” ELC CIV APPEAL NO. E073 OF 2024 – RULING Page 3
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9. From the record, it is confirmed that the appellant died on 29.12.2024 while at the sunset age of Seventy (70) years. A DEATH CERTIFICATE was annexed confirming the same. 10. Ever since, no application has been filed for enlargement of time, substitution or revival of any part of this cause, particularly taking to mind the strict provisions of Order 24 rule 4 of the Civil Procedure Rules which makes it mandatory for substitution to occur within twelve (12) months of the passing on, of a claimant. 11. On that account, and taking cognition of the law and the facts as outlined, I am persuaded to allow the prayers sought, as the motion is found with merit. 12. The file is hereby closed. RULING IS DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS THIS 31ST DAY OF JULY, 2026 L.T. LEWA JUDGE IN THE PRESENCE OF: ELC CIV APPEAL NO. E073 OF 2024 – RULING Page 4
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APPELLANT/RESPONDENT: No appearance RESPONDENT/APPLICANT: Mr. Mwangi Maina COURT ASSISTANT: Mr. Musyimi ELC CIV APPEAL NO. E073 OF 2024 – RULING Page 5
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