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6. Costs of this Application be in the cause. 2. The application is supported by the adavit sworn by Florence Wangui George and is premised on the grounds that this matter came up last in court on 30th July 2020 when it was dismissed for want of prosecution by Hon. Lady Justice Komingoi. 3. The Plainti Richard Muchai Kibathi, died on 26th January 2023 and the Applicant, who is the administrator of the estate of the deceased, claims that she was unaware of this suit until the daughter, Maureen Njoki Kibathi, was served with pleadings in ELC No. E200 of 2023 - Elizabeth Ngige Matathia and Robert Matathia Ngige (Suing as the Administrators of the Estate of the Late Francis Ngige Matathia) vs Maureen Njoki Kibathi and Munyoki Musyimi Kyeru. 4. Upon perusal of the court le, the Applicant discovered that; a) Her husband, Richard Muchai Kibathi, instituted this suit seeking amongst other orders specic performance of the agreements dated 11th June 1996 between Richard Muchai Kibathi and the Defendants herein. b) On 27th August 2019, the Court issued a Notice to Show Cause to the parties as to why the suit should not be dismissed for want of prosecution. c) On 30th July 2020, the Court proceeded to dismiss the suit for want of prosecution. 5. The Applicant depones that the deceased’s Advocates on record at the time, P.W. Macharia & Associates Advocates were not served with the Notice to Show Cause and there is no Adavit of Service on record to evidence the said service. 6. That upon perusal of the pleadings led in ELC No. E200 of 2023, the substratum of the suit involves the ownership of the suit property herein. Therefore, it is important for this Honourable Court to reinstate this suit so that it can be heard and determined on its merits alongside the suit ELC No. E200 of 2023. 7. The Applicant claims that she has been denied a date with the seat of justice by not being given an opportunity for their claim to be heard on merit as the suit was dismissed for want of prosecution while she is desirous of pursuing this matter up to its nal determination. The 1st Respondent’s Replying adavit and Grounds of Objection 8. The 1st Defendant/Respondent opposes the Applicant's Notice of Motion dated 27th November 2025 through a Replying Adavit sworn by Elizabeth Wanjiru Ngigi, co-administrator of the Estate of the late Francis Ngigi Matathia, and Grounds of Opposition dated 30th July 2026. 9. The Respondents contend that the application is procedurally and substantively incompetent. They argue that the Applicant, Florence Wangui George, lacks the legal capacity to institute the application or be substituted as the legal representative of the deceased plainti, Richard Muchai Kibathi. They further assert that no leave was obtained in respect of the deceased plainti's previous advocates and that the Applicant is guilty of inordinate delay. 10. The Respondents maintain that the Court is functus ocio, as the suit was dismissed for want of prosecution on 30th July 2020 (or 12th October 2020 as stated in the Grounds of Opposition), and that neither the deceased plainti nor his estate took steps to revive it before his death in 2023. They argue that the suit has also abated because both original defendants are deceased, the 2nd Defendant having died on 25th December 2017. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5518/eng@2026-09-17 2

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11. On the merits, the Respondents submit that the dispute over LR Nos. 14702/31 and 14702/32 was conclusively determined by a consent order recorded on 17th June 2009, which settled the parties' proprietary interests. They add that a subsequent application for injunctive relief by the deceased plainti was dismissed on 20th November 2015, and no appeal, review, or application to set aside that ruling was ever led. Consequently, revival of the suit would undermine the principles of nality and exhaustion of litigation. 12. The adavit also alleges misconduct by the deceased plainti, including threatening an administrator to compel execution of transfer documents, unlawfully entering the suit property, erecting temporary structures, and continuing unauthorized developments despite enforcement action by the County Government. The Respondents contend that these actions demonstrate an abuse of the court process rather than a genuine pursuit of the claim. 13. Finally, the Respondents argue that the cause of action no longer survives in law because the estates of the deceased parties have been administered, the properties have been transferred to legal representatives and subsequently sold to third parties, and new proprietary interests have arisen. They therefore contend that substitution would serve no useful purpose, would prejudice third-party rights, and that the present application is an abuse of the court process that should be dismissed with costs. Submissions by the Applicant 14. The Applicant led written submissions contending that the sole issue for determination is whether the Court should exercise its discretion to set aside the order dismissing the suit for want of prosecution and reinstate it for hearing on its merits. The Applicant submits that the suit was originally instituted by the late Richard Muchai Kibathi against the Defendants, seeking, among other reliefs, specic performance of the sale agreements dated 11th June 1996 in respect of LR Nos. 14702/31 and 14702/32. 15. The Applicant argues that the failure to prosecute the suit was neither deliberate nor contumelious, explaining that she was unaware of the existence and status of the proceedings until her daughter, Maureen Njoki Kibathi, was served with pleadings in ELC No. E200 of 2023. It was only then that she became aware of the dispute relating to the suit properties and the earlier proceedings. 16. Relying on Order 17 Rule 2 of the Civil Procedure Rules, 2010, the Applicant submits that a Notice to Show Cause is a mandatory procedural safeguard intended to aord parties an opportunity to explain any delay before a suit is dismissed. She maintains that there is no evidence on the Court record, particularly no Adavit of Service, demonstrating that the deceased Plainti or his advocates, P.W. Macharia & Associates Advocates, were served with the Notice to Show Cause prior to the dismissal of the suit on 30th July 2020. Consequently, the Applicant contends that the dismissal was eected without procedural fairness and in violation of the Plainti’s constitutional right to a fair hearing. 17. The Applicant further invokes Order 12 Rule 7, submitting that the Court has unfettered discretion to set aside orders made in the absence of a party where it is just to do so. She relies on the decisions in Mwangi S. Kimenyi v Attorney General and Another, as cited in Shimwenyi v Carolyne & 2 Others [2022] KEHC 17005 (KLR), Furobank Limited v Shah Munge & Partners [2016] KECA 123 (KLR), and Okello v Attorney General & 5 Others [2026] KEELC 234 (KLR). From these authorities, the Applicant submits that delay alone is not sucient to warrant dismissal, that the Court should consider whether the delay was intentional or inexcusable and whether it causes prejudice, and that the absence of proof of service of the Notice to Show Cause renders a dismissal for want of prosecution unsustainable. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5518/eng@2026-09-17 3

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18. Applying those principles, the Applicant submits that the delay was satisfactorily explained, was not wilful, and did not amount to an abuse of the Court process. She further argues that the Respondents would not suer prejudice incapable of compensation by an award of costs if the suit were reinstated, whereas she would suer grave prejudice if denied the opportunity to pursue her proprietary claim. The Applicant also points out that the suit properties are the subject of ELC Case No. E200 of 2023 and submits that reinstatement would facilitate the determination of related disputes on their merits. Analysis and Determination 19. The Court has considered the application herein and the response thereto and submissions by Counsel for the parties. In summary the Applicant seeks substitution of the deceased Plainti, amendment of the plaint to reect substitution, leave to the current advocates for the Plainti to come on record in place of the previous advocates, setting aside of the order of dismissal of the suit and reinstatement of the suit for hearing and determination on merit. 20. A careful consideration of the facts as presented by the parties, leads to the conclusion that the 1st prayer in the application under consideration, being a prayer for substitution of the deceased Plainti, with Kevin Muchai Kibathi and Maureen Njoki Kibathi, the legal representatives of the estate of the deceased Plainti is procedurally incompetent. The chronology of events discloses that the suit was dismissed for want of prosecution on 30th July 2020; the sole plainti subsequently died in January 2023; the application for substitution was not led until 2025; and, signicantly, both defendants had themselves died long before the application was made, the rst Defendant died on 13th May 2002 and the second Defendant died on 24th December 2017. These facts raise distinct procedural impediments under Order 24 of the Civil Procedure Rules, each of which would require to be surmounted before the court could properly entertain an application for substitution. 21. In the Court’s view, the 1st huddle is that substitution under Order 24 Rule 3 presupposes the existence of a pending suit. Once a suit has been dismissed, there is ordinarily no subsisting proceeding in which a legal representative may be substituted. This principle was clearly explained in Wilson Njiri Gikonyo v Ruth Mary Wangui & 2 Others [2022] KEELC 679 (KLR), where the court stated: “ Where it is a sole plainti who dies and no application is made within the requisite one year, his suit abates and unless an application to have the suit revived is made as provided under Order 24 Rule 7(2), no substitution is possible since there is technically no suit after abatement on which the substitution can be made." 22. Although that observation was made in the context of an abated suit, the court proceeded to make a broader statement directly relevant to the present facts. After considering the eect of a judgment dismissing the suit, the learned Judge held: “ Following the delivery of the judgment ... there was no case by the plainti that remained pending as the court had determined the same. Order 24 Rule 7(2) as relates to revival of the suit would therefore not apply." 23. The above reasoning applies to a suit dismissed for want of prosecution. The plainti herein died approximately two and a half years after the dismissal of the suit for want of prosecution. At the time of his death there was no pending action capable of sustaining an application for substitution under Order 24 Rule 3. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5518/eng@2026-09-17 4

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24. Even assuming, for purposes of argument, that substitution could have been sought, the application would still encounter the mandatory provisions of Order 24 Rule 3(2). That Rule requires an application for substitution to be made within one year of the death of a sole plainti, failing which the suit abates so far as the deceased plainti is concerned, subject only to the court's power to extend time for good reason. The legal framework was summarized in Njuguna Mwaura Mbogo v EK Banks Limited [2017] KEELC 1587 (KLR), where the court observed that Order 24 Rule 7 contains a framework on revival of an abated suit. The court further held: “ The proviso to Rule 3(2) gives the court powers to extend the time for substitution beyond one year for good reason." 25. On the facts of this case, the plainti died in January 2023 and the application was led only in November 2025. Thus, even if a suit had been pending, it would have abated by operation of law after the expiry of one year unless time had rst been enlarged or the suit revived upon proof of sucient cause. The statutory position is reinforced by Order 24 Rule 7(2) of the Civil Procedure Rules, which provides that: “ The plainti or the person claiming to be the legal representative of a deceased plainti... may apply for an order to revive a suit which has abated... and, if it is proved that he was prevented by any sucient cause from continuing the suit, the court shall revive the suit..." 26. The language of the Rule demonstrates that revival is not automatic. It is contingent upon proof of "sucient cause". Where there has been prolonged inactivity extending over several years, the applicant bears a heavy burden of explaining the delay before the court's discretion can properly be exercised. 27. In the present case there is no prayer made for revival of the abated suit. The application made under prayer 6 of the present application is for setting aside of the order of dismissal for want of prosecution and restatement of the suit for hearing and determination on merit. Dismissal of suits for want of prosecution is governed under Order 17 Rule 2 of the Civil Procedure Rules Where Sub- Rule 1 states that; In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit. Sub-rule (5) states that; A suit stands dismissed after two years where no step has been undertaken. 28. From the foregoing provisions, there are two ways in which a suit can be dismissed for want of prosecution. In the present case, the Applicant ought to explain the reason why the suit had not been prosecuted upto the time when the same came up for hearing of the Notice to show cause if dismissal was under Order 17 Rule 2(1). However, under Order 17 Rule 2 (5) the suit stood dismissed by operation of the law and the court was only making a formal note of the automatic dismissal after nonaction for two years. The Applicants have not placed before the Court any explanation as to why the suit had not been prosecuted for the entire period under consideration. 29. The position becomes even more dicult when consideration is given to the position of the defendants. The rst defendant is said to have died in May 2003 and the second Defendant in December 2017. Under Order 24 Rule 4, substitution of a deceased defendant must likewise be sought within one year, failing which the suit abates against the deceased defendant unless appropriate relief is https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5518/eng@2026-09-17 5

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obtained. This provision is made in mandatory terms that, “the suit shall abate as against the deceased defendant.” The language of the above rule admits of no discretion at that stage; abatement occurs automatically upon the lapse of one year from the date of death. It is therefore not a matter requiring a formal court order, but a legal consequence that ensues by operation of law. 30. Kenyan courts have consistently armed this position. In Titus Kiragu v Jackson Mugo Mathai & another [2013] eKLR, the court held that once the statutory period lapses without substitution, the suit abates automatically and any proceedings undertaken thereafter are a nullity. Similarly, in Ngari Ndegenye v Charles Githinji & another [2008] eKLR, the court rejected an application for substitution brought several years after the death of the defendant, emphasizing that the suit had already abated and there was no subsisting cause upon which substitution could be anchored. 31. The legal consequence of abatement is that the suit ceases to exist as against the deceased defendant. This principle was underscored in Kenya Farmers’ Cooperative Union Ltd v Charles Murgor (deceased) [2005] eKLR, where the court held that once a suit has abated, there is no existing suit in which substitution can be eected unless and until the abatement is rst set aside. In other words, an application for substitution led after abatement is incompetent, as it is premised on a non-existent proceeding. The facts of the above-stated case were that an application for substitution of the deceased Defendant was led more than two years after the Defendant had died. Waweru, J, stated: “ Therefore, as a matter of law, the suit had abated. When substitution was subsequently purportedly made on 5th March, 1998, there was no suit subsisting in which substitution could be made. It had abated..... one year since the death of the Defendant. The order for substitution was thus made in error. It was unlawful and ought not have been entered.” 32. Again, in M’Mboroki M’arangacha Vs Land Adjudication Ocer Nyambene & 2 others [2005] eKLR, the court considered a similar situation in an application for substitution of a party by a Legal Representative, and stated as follows: “ But it is clear that such an application seeking that a legal representative be made party in the place of the deceased Plainti, must be made within one year. In default of bringing the said application, as I understand the rule, the surviving suit shall abate so far as the deceased Plainti is concerned. The language used by the legislature is mandatory, as the words used are "the suit shall abate." It is my understanding and view; therefore, the abatement of the suit is automatic and does not... need an order of the court to abate the suit." 33. Since no substitution was ever eected after the deaths of the defendants, then by the time the suit itself was dismissed in July 2020 the proceedings were already aected by the death of both defendants. Consequently, any attempt to revive the litigation today would necessarily require the court not only to address the dismissal of the suit but also to consider the legal consequences of the failure to substitute the deceased defendants within the statutory period. 34. Viewed cumulatively, the procedural hurdles are formidable. Before the court could even consider substituting the legal representative of the deceased plainti, it would rst have to be persuaded to revive the suit against the deceased Defendants, set aside the dismissal entered in July 2020. Thereafter, if necessary, questions of abatement and enlargement of time would have to be addressed. Finally, the estates of both deceased defendants would themselves have to be brought properly before the court. Each of those steps requires the exercise of judicial discretion upon proof of sucient cause, and none follows automatically from the other. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5518/eng@2026-09-17 6

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35. From the foregoing, the Court is not persuaded that the prayers sought in the Notice of Motion dated 27th November 2025 are merited and consequently the application is hereby dismissed. Each party shall bear their own costs of this application. DELIVERED, DATED AND SIGNED VIA MICROSOFT TEAMS THIS 17TH DAY OF SEPTEMBER, 2026. HON. L. G. KIMANI JUDGE ENVIRONMENT AND LAND COURT The Ruling is read in the presence ofM/S Wanjiru holding brief for Alakonya for the Applicant Mwaniki Gitau for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5518/eng@2026-09-17 7

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