Mohamud v Mungai & 4 others

c. This Honourable Court be pleased to grant Messrs. Muthoga & Omari Advocates leave to come on record for the Proposed Plainti/Applicant after entry of judgment. d. This Honourable court be pleased to grant leave to the Applicant to le an application for substitution of the Plainti (deceased) with Abdul Basaad Haf out of time. e. This Honorable court be pleased to grant an order that the Plainti herein, Abdirahman Ali Muhamud (Deceased) be substituted with Abdul Basaad Haf, the Personal Representative of the estate of Abdirahman Ali Muhamud (Deceased). f. This Honourable Court be pleased to review and/or set aside the Judgment given on 5th February 2025 and all consequential orders and proceedings thereto and direct that the matter proceeds de novo on merit. g. The Honourable Court be pleased to issue any further orders in the interests of justice. h. There be no order as to costs. 2. The application is premised on grounds on its face and on the proposed Plainti’s supporting adavit. He avers that the Plainti in the matter (Abdirahman Ali Mohamud), is his father and that he passed away on 11th August 2022 when the instant suit was pending hearing and determination. Further, that their family was unaware of the instant proceedings that had survived him, and they only became aware of the same when they were forcefully evicted from the house his late father occupied on the strength of the judgment delivered herein on 5th February 2025. He insists that his late father’s advocate in the matter did not inform them of the pending suit. 3. He contends that the said judgement was obtained irregularly as the matter proceeded without his late father’s participation thus he urges the Court to set it aside. He also conrms that he was issued with a Limited Grant of Letters of Administration Ad Litem appointing him as the Personal Representative of his late father’s estate and urges the Court to allow him to substitute his deceased father. Response 4. The application is opposed by the Defendants vide the 2nd Defendant’s replying adavit. She avers that Rahab Nyokabi Mungai-deceased, whose estate is represented by the 5th Defendant, is the registered proprietor of Plot number 284 Eastleigh, Section 2 Nairobi and that the Plainti had leased the suit property from her vide a ve (5)-year lease which commenced on 1st October 2013 and terminated on 31st December 2018. 5. She points out that before the said Lease could expire, the Plainti led the instant suit seeking injunctive Orders and a declaration that his tenancy is legal and binding. In response, the Defendants led a Counterclaim, which the Plainti did not defend. She points out that the Plainti's suit was dismissed for want of prosecution on 28th February, 2022 by Justice Aleem Visram when the Plainti was still alive and he took no steps during his lifetime to have the said Orders set aside. 6. She contends that at the time of his death, the Plainti had no claim against the Defendants and therefore the Orders sought cannot be granted. On a without prejudice basis, she insists that the Plainti had no defence against the Defendants’ case which sought an eviction order. 7. She also claims that upon judgement, the Defendants extracted the Decree herein, which was served on all tenants on the suit premises and shortly thereafter one Fahmo Waisame Gabeyre claiming to be a tenant of the Plainti in the suit premises, led an application seeking for Orders to be joined in the suit, which application was dismissed by Justice Omange on the 26th September, 2024. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5426/eng@2026-09-17 2

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8. She reiterates that subsequently, the Defendants’ Advocates applied for eviction Orders which were served on all tenants on the suit premises on 27th May, 2025 and they all signed against the orders and thereafter they approached the Defendants requesting to be allowed to continue residing in the suit premises, which request was acceded to after the parties agreed on new tenancy conditions. 9. She contends that the Plainti and his family have never lived in the suit premises, insisting that the application led by one Fahmo Waisame Gabere herein claiming to have been the Plainti's tenant since 1st February,2021 is enough evidence. She also points out that as per the Decree issued by this Court, the Plainti owes the Defendant two million two hundred and sixty one thousand (Kshs.2,261,000) in unpaid rent and ve hundred thousand (Kshs.500,000/=), being general damages for trespass. She contends that the application is meant to delay the Defendants’ enjoyment of the fruits of the judgement entered in their favour and urges the Court to dismiss it. 10. The application was canvassed by way of written submissions. Submissions 11. The proposed Plainti relies on the case of Sospeter Mwangi Muchina v Lawrence Okoth & another [2021] KEHC 2287 (KLR), to seek leave for Messrs. Muthoga & Omari Advocates to come on record for him since judgement has already been entered in the matter. He also submits that a cause of action survives a deceased party in a suit pursuant to Order 24 Rule 3(1) of the Civil Procedure Rules. He acknowledges that this suit abated one year after the death of his late father, but contends that it can be revived where sucient cause is demonstrated, adding that he has demonstrated that the delay in seeking substitution was occasioned by excusable ignorance of the suit and the previous Advocate’s non-disclosure. 12. He also submits that a suit or a counterclaim cannot legally proceed against or in favour of a dead person without proper substitution thus proceedings subsequent to his father’s death and the Judgment dated 5th February 2025 are fundamentally defective and irregular and ought to be set aside as a matter of right. He also submits that he has demonstrated sucient cause to warrant review of the impugned judgment in accordance with Order 45 rule 1 of the Civil Procedure Rules. 13. To buttress his averments, he relied on the following decisions: Stephen Gathua Kimani v Harry Wanjira t/a Providence Auctioneers [2016] eKLR, Kamau Kania v Patrick Rerimoi & 2 others [2017] KEELC 34 (KLR), Muema v Madison Insurance Company Ltd (Civil Suit 389 of 2009) [2022] KEHC 15449 (KLR) (18 October 2022) (Ruling), and Benjamin Leonard Mcfoy v United Africa Company Limited (1961) ALL ER 1169. 14. On their part, the Defendants submit that the Intended Plainti’s prayer for stay of the impugned judgment is overtaken by events since they have already taken possession of the suit premises and are managing the same, a position that is not disputed. Further, that the Plainti and his family had never lived in the suit premises hence there is nothing to stay. They also accede to prayer (c) of the motion, concerning representation. 15. On substitution of the Plainti by his legal representative, they insist that there is no suit to warrant the substitution, arguing that an order dismissing the suit is still in force. On a without prejudice basis, they submit that the Plainti’s suit abated a year after his death and that the Intended Plainti did not make a prayer for extension of time. 16. On the prayer for review of the impugned judgement, they submit that the Intended Plainti all along knew about the suit but he chose not to take action, hence there is no new material tendered before this Court to warrant review. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5426/eng@2026-09-17 3

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17. To buttress their averments, the Defendants relied on the following decisions: Mureithi Charles & another v Jacob Atina Nyagesuka [2022] eKLR and Chartered Institute of Arbitrators (Kenya Branch) v Charles Njogu Lofty [2016] eKLR. Analysis and Determination 18. I have considered the instant Notice of Motion application including the respective adavits as well as rivalling submissions and the following are the issues for determination: a. Whether leave should be granted to Messrs. Muthoga & Omari Advocates to come on record for the Intended Plainti. b. Whether the Applicant is entitled to an order of stay of execution of the Judgment delivered on 5th February 2024. c. Whether the Intended Plainti has established sucient cause to warrant substitution. d. Whether the Judgment delivered herein should be reviewed and/or set aside. 19. The Intended Plainti’s case is that this Court entered judgement on 5th February 2024 (although he indicates 2025) and on the strength of the said judgement, the Plainti’s family was evicted from the suit property. He contends that it is upon eviction that they he learnt that the suit proceeded and the impugned judgement was entered against the Plainti, who is his father, despite the fact that he passed away on 11th August 2022. He claims that the Plainti’s family was not aware of the suit and that the advocate who represented his late father did not disclose this matter to them. He contends that judgement entered herein without his late father’s participation is irregular. 20. In opposition, the Defendants contend that the controversy between the Plainti and the Defendants was pegged on a Lease Agreement which expired in 2018 and the Plainti remains in rent arrears. They argue that the Plainti’s case was dismissed while he was still alive thus there is no suit to revive. Further, that they had a Counterclaim and since the Plainti did not le a response, there is no suit that the Intended Plainti can be substituted in. 21. On the rst issue, the Defendants concede to Messrs. Muthoga & Omari Advocates coming on record for the Intended Plainti and I will allow this prayer. 22. On the second issue, the Plainti did not submit on it, while the Defendants contend that it has been overtaken by events since execution has already been completed as possession of the suit property has changed hands, since they are in control of the tenants on the said suit premises. Since the Applicant did not dispute that the Decree herein has already been executed, I nd that he is not entitled to an order of stay of execution of the Judgment delivered on 5th February 2024 as the said prayer has been overtaken by events. 23. On the third issue, the record indicates that the Plainti’s case in the main suit was dismissed on 20th April 2023, by Hon. Justice Aleem Visram. I note by this time the Plainti had passed on, having died on 11th August 2022. I hence disagree with the Defendants’ on this point. The question we hence need to ponder is whether an Order can issue against a deceased person. 24. Order 24 Rule 4 of the Civil Procedure Rules requires that upon the death of a party, an application should be made to substitute such a deceased party with a legal representative. Where no such application is made within a year of death, Order 24 Rule 4(3) stipulates that the said suit abates. 25. The Plainti died on 11th August 2022 but was not substituted within one year of his death. I hence nd that his suit automatically abated on 12th August 2023. However, Order 24 Rule 7 of the Civil https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5426/eng@2026-09-17 4

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Procedure Rules gives this Court discretion to revive a suit upon demonstration of sucient cause warranting delay in substitution. It is trite that proceedings undertaken when a deceased party has not been substituted are a nullity. The Court of Appeal stated as follows in CKM v JMM & another [2024] KECA 293 (KLR): “ In conclusion, we agree with the appellant that the proceedings that were undertaken by the learned Judge one year after the deceased died without substitution were a nullity by the operation of the law, as they were undertaken without jurisdiction. It follows that the judgment subject of the appeal was a nullity, and is hereby set aside.” Emphasis Mine 26. The Defendants argued that after the Plainti’s suit was dismissed, it is their Counterclaim which was heard and since the Defendant did not le a response to it, the Applicant could not substitute him in a suit that he was not technically a party to. This Court, Munyao Sila J (as he then was), has held that even in a counterclaim, the rules of substitution apply. He stated as follows in Kamau Kania v Patrick Rerimoi & 2 Others [2017] KEELC 34 (KLR): “ I have taken note of the sentiments of the respondent, but I observe that she also has a counterclaim and she cannot be heard on the counterclaim unless the plainti is represented. In essence, her case against the plainti will also be marked as abated, if I do not revive the suit. It is therefore in the best interest of all parties that I allow the application to revive the suit and allow the applicant to come into the suit, on behalf of the estate of the deceased plainti.” 27. From the foregoing, while relying on the legal provisions cited and associating myself with the decisions quoted, I nd that the proceedings undertaken after the demise of the Plainti when the deceased was not substituted is indeed a nullity. It is my considered view that even if the Counterclaim was undefended, it was still against a deceased person and substitution was mandatory. I hence nd that the judgement entered herein in favour of the Defendants as per the Counterclaim is indeed irregular. Further, I note the Intended Plainti has sought for review of the impugned judgment and contends that he has demonstrated sucient cause to warrant the said review. Section 80 of the Civil Procedure Act gives this court jurisdiction to determine an application for review, while Order 45 of the Civil Procedure Rules, provides as follows: “ (1) (2) Any person considering himself aggrieved; a. By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or b. By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sucient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5426/eng@2026-09-17 5

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appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.” 28. The Court of Appeal stated as follows in Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers [2019] eKLR; “….an order for review is restricted to parameters set out by the law..” 29. From the facts before the Court, I opine that there was indeed an error apparent on the face of record as this matter proceeded against a deceased person who was yet to be substituted. In the foregoing, I will proceed to set aside the impugned judgement as it was entered irregularly. 30. On the issue of substitution of the deceased by the Applicant, I note from the facts presented before Court, the Applicant led the instant application, one year and eleven months, after delivery of impugned judgement but after obtaining the Grant of Ad Litem. He has explained that he was not aware of the instant suit as the deceased’s advocate did not inform them. Further, that he became aware of the instant suit in February, 2025 upon eviction but when the said suit had abated. As I have noted above that this suit proceeded after the deceased demise and the judgement herein was hence irregular, I need to say no more. 31. The Court of Appeal in Issa Masudi Mwabumba vs Alice Kavenya Mutunga & 4 others [2012] eKLR, Koome, JA (as she then was) while dealing with an application led after two years and eight months to revive an abated Appeal held that: “ This application was made two years and eight months after the appeal had abated. The explanation oered by the applicant is that the Advocate Mr Abdallah failed to take the steps because the court diary did not have dates. It is also to be noted that the appeal was led by the deceased in person. By a notice of appointment led on 20th July, 2011, the rm of Timamy & Company Advocates came on record as having been instructed by the applicant as the legal representative of the deceased. 9. Besides the principles set out in the case of Leo (supra), I am also guided by the provisions of Section 3A and 3B of the Appellate Jurisdiction Act otherwise known as the oxygen principle. Stemming from the overarching objectives in the administration of justice the goal is at the end of day, the court attains justice and fairness in the circumstances of each case. This is the same spirit that is envisaged as the thread that kneads through the Constitution of Kenya, 2010 in particular Article 159. 10. Bearing in mind those overarching objectives, this appeal deserves to be revived for the following reasons: rstly, the appellant was acting in person when he led the appeal. Secondly, an advocate was instructed but he did not take the necessary steps to revive the appeal; although no reasons have been given for the advocate’s failure, his failure or mistakes cannot be attributed to the applicant. Thirdly, the applicant has a limited grant of letters of administration in respect of the deceased’s estate. Although the limited grant gives the applicant power to le a suit, that power can also be construed to include prosecuting an appeal. The fourth reason for allowing the revival of the suit is for reasons that the dispute involves ownership of land and a durable solution that addresses the substantive issues is always a better option.” 32. I note the suit herein abated in August 2023 by operation of the law and the Applicant made the instant application on 10th December, 2025 which is two years four months after abatement. The Defendant has vehemently opposed the instant application but not demonstrated what substantial loss it stands to suer if the suit was revived. The Applicant has explained the reasons for the delay in ling the instant application, which I nd plausible. This court further stands guided by the principles enshrined in https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5426/eng@2026-09-17 6

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the Constitution on administration of justice, specically the Overriding Objective. Further, from the averments in the replying adavit, it is my considered view that no harm will be suered if this matter proceeds on merit. 33. Based on the facts as presented while relying on the legal provisions cited above as well as the decisions quoted, I nd that the Applicant has demonstrated sucient cause to allow for the revival of the abated suit against the deceased estate and will proceed to do so. 34. In the foregoing, I nd the instant Notice of Motion application partially successfully and will allow it in the following terms: i. That the rm of Messrs. Muthoga & Omari Advocates be and is hereby granted leave to come on record for the Proposed Plainti/Applicant after entry of judgment. ii. That the Plainti herein, Abdirahman Ali Muhamud (Deceased) be and is hereby substituted with Abdul Basaad Haf, the Personal Representative of the estate of Abdirahman Ali Muhamud (Deceased). iii. That the judgement delivered on the 5th February 2024 and all consequential orders and proceedings thereto be and is hereby set aside. iv. Costs will be in the cause DATED SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Ms Ndirangu for Defendant/Respondent Charo for Plainti Court Assistant: Joan ELC CASE NO. 6 OF 2023 Ruling Page 23 of 23 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5426/eng@2026-09-17 7

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