William Matundwa Okongo & another v Francis Ongwenyi Okero & 3 others

b) An order of eviction directed against the defendant, his agents, servants, and/or anyone claiming under the defendant number LR. No. Isoge/Kineni/57 and /or any portion thereof. c) Permanent injunction restraining the defendant either by himself, agents, servants and/or anyone claiming under the defendant trespassing from unto entering cultivating, upon, re-entering, building structures, interfering with and ‘or an any other manner dealing with the suit land. d) General damages for trespass. e) Interest on (d) hereof at court rates. f) Costs of this suit to be borne by the defendants. 3. When the matter came up for mention on 21 st October 2025, Counsel for the Plaintiffs informed the Court that the First Plaintiff had passed away. He then sought time to substitute the deceased First Plaintiff. 4. Subsequently, the Plaintiffs filed Notice of Motion dated 9 th March 2026, which is the subject of this ruling. The application is brought under Sections 1A and 1B of the Civil Procedure Act and Order 51 of the Civil Procedure Rules and seeks the following orders: 1. THAT this application be certified as urgent and the same be heard on priority; ELCLC No. E007 of 2025 (Nyamira) Page 2 of 8

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2. THAT the Honourable court grants orders for the 2 nd Plaintiff to substitute the 1 st Plaintiff who died on 17/7/2025 and amend the plaint or pleadings and serve the defendants herein. 3. THAT the Honourable court issues orders as to costs in this application. 5. The application is based on the grounds listed on its face and is supported by an affidavit sworn by James Okere Okongo, the Second Plaintiff. He deposed that William Matundura Okongo, the First Plaintiff, died on 17th July 2025. He annexed a copy of certificate of death and urged the Court to grant him the orders sought. 6. The First to Third Defendants filed Grounds of Opposition dated 6th May 2026 in which they contended that the application was not anchored on the law, that the Applicant had no locus standi and that the application was incurably defective. 7. The Applicant subsequently filed a Further Affidavit which he swore on 20th July 2026. He deposed therein that the First Plaintiff was his brother and that the First Plaintiff’s wife Mary Nyanchama Matundura obtained a Grant of Letters of Administration Ad Litem in respect of his estate in Nyamira CM Misc. Succession Cause No. E001 of 2026 on 6th January 2026. He added that on 29 th January 2026, the said Subordinate Court delivered a ruling and issued a Grant of Letters of Administration Ad Litem in respect of the estate to ELCLC No. E007 of 2025 (Nyamira) Page 3 of 8

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him (the Applicant) and Mary Nyanchama Matundura in respect of this case. He annexed copies of the two rulings. 8. The Applicant also deposed that during the institution of the case, the Plaintiffs were acting in person and that there were errors which they seek to correct through amendment. 9. The application was canvassed through written submissions. The Applicant filed submissions dated 1 st May 2026 while the First to Third Defendants filed submissions dated 6 th May 2026. 10.I have carefully considered the application, the affidavits, grounds of opposition and the submissions. The issues for determination are whether the Applicant has locus standi and whether the orders sought should issue. 11.It is not in dispute that the First Plaintiff died on 17 th July 2025, after institution of this suit. Indeed, a copy of certificate of death has been exhibited to confirm the fact of his demise. 12.The law relating substitution following death of a Plaintiff is found at Order 24 rule 3 of the Civil Procedure Rules which provides: (1) Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause ELCLC No. E007 of 2025 (Nyamira) the legal Page 4 of 8 representative of the

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deceased plaintiff 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 plaintiff 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 plaintiff: Provided the court may, for good reason on application, extend the time. 13.Thus, the legal representative of the deceased First Plaintiff is to be made a party to proceed with the suit. The term “legal representative” is defined in section 2 of the Civil Procedure Act as meaning: a person who in law represents the estate of a deceased person, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. 14.There are many authorities to the effect that legal representative means executor or administrator of a deceased person duly appointed under the Law of Succession Act, Cap 160. See Trouistik Union International & another v Jane Mbeyu & another [1993] eKLR and CKM v ENM & ELCLC No. E007 of 2025 (Nyamira) Page 5 of 8

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another (Civil Appeal 250 of 2019) [2024] KECA 293 (KLR) (8 March 2024) (Judgment). 15.I understand the First to Third Defendants’ position to be that the Applicant is not a legal representative of the deceased First Plaintiff and therefore lacks locus standi to bring the present application. Locus standi is defined in Black’s Law Dictionary, 9th Edition (page 1026) as “the right to bring an action or to be heard in a given forum.”. 16.The Applicant has exhibited copies of rulings delivered in Nyamira CM Misc. Succession Cause No. E001 of 2026 on 6th January 2026 and 29th January 2026. The fact of the existence of those rulings has not been challenged. A reading of the rulings shows that that the deceased First Plaintiff’s widow Mary Nyanchama Matundura and the Applicant obtained a Grant of Letters of Administration Ad Litem in respect of his estate empowering them to represent the estate in this case. I am satisfied that the Applicant has the requisite locus standi. 17.In the application, the Second Plaintiff seeks to substitute the deceased First Plaintiff. The Grant of Letters of Administration Ad Litem was however issued jointly to the Applicant and the deceased First Plaintiff’s widow Mary Nyanchama Matundura. No reason has been offered as to why she has not been included in the application for substitution. There may very well be important considerations of prudence and interests of the estate of the deceased First Plaintiff that call for her inclusion. ELCLC No. E007 of 2025 (Nyamira) Page 6 of 8

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18.Pursuant to Order 24 rule 3 (2) of the Civil Procedure Rules, an application for substitution is to be made within one year of the death. The deceased First Plaintiff died on 17 th July 2025. The present application was filed on 11 th March 2026, well within the required one year period. I find merit in the prayer for substitution. 19.The Applicant has also sought leave to amend the Plaint. The explanation offered is that the original Plaint was prepared and filed by the two Plaintiffs acting in person and that there are errors which require correction. The record indeed confirms that they were acting in person. 20.The Court's power to allow amendment of pleadings is discretionary and is exercised for the purpose of determining the real questions in controversy between the parties and avoiding multiplicity of proceedings, provided that the amendment does not occasion injustice or prejudice incapable of compensation by costs or an opportunity to respond. 21.In Joseph Yano v Stephen Kibet Kiptum [2019] KECA 509 (KLR) the Court of Appeal restated the holding in Eastern Bakery v Castelino (1958) EA 461 that amendments sought before hearing should be freely allowed where they occasion no injustice incapable of compensation by costs. 22.In this case, the main suit is yet to procced to hearing. Even pre-trial procedures have not been completed. The Defendants will, upon substitution, have an opportunity to respond to and, ELCLC No. E007 of 2025 (Nyamira) Page 7 of 8

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where necessary, amend their pleadings in consequence of the amended Plaint. I see no prejudice to the Defendants which is incapable of compensation by costs. 23.In view of the foregoing, I find merit in the application. I make the following orders: a) The deceased First Plaintiff (William Matundura Okongo) is hereby substituted by Mary Nyanchama Matundura and James Kerore Okongo. b) The Plaintiffs are granted leave to file and serve an Amended Plaint within 14 (Fourteen) days from the date of delivery of this ruling. c) The Defendants to file and serve Amended Defences, if need be, within 14 (Fourteen) days of service of the Amended Plaint. d) Costs of Notice of Motion dated 9 th March 2026 shall be in the cause. Dated, signed, and delivered at Nyamira, this 22 nd day of September 2026. D. O. OHUNGO JUDGE Delivered in the presence of: Mr Arosi for the Plaintiffs No appearance for the Defendants Court Assistant: B Kerubo ELCLC No. E007 of 2025 (Nyamira) Page 8 of 8

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