Anwar v Mohamed Ashraf Cresco Investment Limited

5. The applicant deposes that any order reinstating the suit was irregular and taken ex parte without the defendants' knowledge. The applicant deposes that there is no suit before the court as no summons to enter appearance was ever extracted, issued or served upon the defendants. 6. The applicant deposes that the court became functus ocio and devoid of jurisdiction to entertain the suit after the pronouncement on 19.6.2026 striking out the suit for abatement, the orders of which are yet to be formally reviewed, set aside or appealed against by the respondent, making the present suit incompetent and fatally defective. 7. The applicant deposes that there exists a purported further amended plaint, list of documents and witnesses in the CTS which was led without leave of court and has never been served upon the defendants. The application deposes that no summons to enter appearance was extracted and/or served upon them pursuant to the purported irregular amendments of the pleadings regarding the original abated suit. The application is opposed through a response dated 10.2.2026. 8. The court record shows that the plainti moved the court by a plaint dated 15.4.2016 seeking, inter alia, declaration of constructive trust over land title Number 7158/16, that he is a benecial and legitimate owner, vacant possession of the land from the 2nd defendant, permanent injunction, mesne prots and damages for trespass. Alongside the plaint, the plainti also led a notice of motion dated 1.9.2016 and 16.5.2016 for interim orders, which were served upon the defendants by an adavit sworn on 26.5.2016 by John Oriema. 9. Thereafter, the defendant led a notice of appointment of an advocate dated 19.5.2016. The 1st defendant later on 10.7.2016 led a statement of defence dated 10.7.2016. It was later accompanied by a witness statement and list of documents dated 8.11.2019. 10. The court record shows that on 31.5.2016 the court was told by counsel on record that the parties were negotiating the matter and had agreed to maintain the status quo. Interim orders to maintain the status quo were also extended on 26.10.2015. On 29.11.2017, the notice of motion dated 1.4.2016 motion dated 1.4.2016 was marked as settled with the status quo regarding the suit property and its Title being maintained pending hearing and determination of the suit as regards any sale, charge or alienation in any manner. 11. The defendants were ordered to le a statement of defence, bundle of documents, and witness statement. Equally, the parties agreed to continue amicably engaging to attempt a possible out-of-court settlement. 12. The record shows that on 27.11.2019 Mohammed Anwar's father testied as PW1 and closed the plainti’s case. 13. The defence case was adjourned to 4.2.2020 and to 14.7.2020 due to the sickness of one of the defendant. On 14.7.2020, the 1st defendant was reported to be deceased with eect from 26.3.2020. The learned counsel for the defendants sought time to substitute him. As of 22.7.2021, no application for substitution had been led. 14. The record shows that on 8.11.2021 the court was told of an application dated 31.8.2021 seeking substitution of the 1st defendant, which was not opposed. The court proceeded to allow prayers nos. 2,3 & 4 of the application. 15. A hearing date was given for 15.3.2022. When the matter came for hearing on that day, Mr Ashford Mugwuka’s Advocate, told the court that he was coming on record for the 1st defendant's legal administrator. He asked for time to regularise his appearance. The court allowed the request and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5757/eng@2026-09-23 2

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adjourned the defence hearing for 3.10.2022. On 23.2.2023, the court was told that the plainti had passed on. The court gave the plainti's estate time to substitute him. As of 29.2.2024, the court was told of a grant of letters of administration that had been issued. 16. During a mention on 23.4.2024, the court was told that the suit had abated since the plainti died on 4.12.2022. 17. A nal mention was given for 19.6.2024 to substitute the deceased plainti. On 19.6.2024, there was no application led for substitution. The court, following submission by the 1st defendant, marked the suit as abated. The court indicated that the deceased's estate could move the court when it was ready. The le was marked as closed. 18. The record shows that on 15.10.2024, the application dated 20 of 2024 came for hearing in the presence of Mr Ashford Mugwuku for the defendants. It was submitted that the rm of Mbugua & Macharia Advocates had been served. 19. The court ordered service Ms Ashford & Company Advocates, who were directed to le a response within 14 days and submit. A mention date was set for 21.11.2024 to conrm compliance. The defendants did not appear on that date. 20. The plainti sought the orders since the application was not opposed, which the court allowed. Parties were given a mention date for 17.12.2024 to conrm compliance with Order 11 of the Civil Procedure Rules. Learned counsel, Mr Ashford Mugwuku, appeared for the defendants, said that he was not aware of the application that was allowed. 21. The court ordered the parties to comply with Order 11 of the Civil Procedure Rules by 25.2.2025. 22. On 9.6.2025, Mr Ashford was represented by Mr. Kabebe, who said that there is no proper plainti because the limited grant had not been conrmed. The court xed a defence hearing for 2.12.2025 with an order that the defendants were at liberty to move the court on the issue of the legal representative of the deceased plainti. 23. The current application was then led on the morning of the defence hearing, on the basis that there was no service with the application for the reinstatement of the suit and the alleged amended pleadings. The plainti's counsel objected to the same since a dispute appearing in court throughout Mr Ashford Mugwuku had only led a notice of appointment of advocates the same morning. 24. Learned counsel said that he was only on record for the 2nd defendant and not the 1st defendant who had not been according to him substituted to date. 25. The court adjourned the matter to pave the way for this application. Parties were also granted leave to put in further adavit and written submissions within 14 days. 26. The court record, as indicated above, shows that the notice of appointment dated 19.9.2016 shows that the rm of Mbugua, Atudo and Macharia Advocates came on record for both the 1st & 2nd defendants. When it came to the ling of the defence, the law rm indicated that the said defence was only in respect of the 1st defendant. 27. The bone of contention by the defendants is that the suit abated and was either never sought to be reinstated, or, if it was so reinstated, the 1st defendant was not privy to or aware of the said application, which, according to them, was done ex parte. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5757/eng@2026-09-23 3

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28. The court record is clear that PW 1 testied during his lifetime and the lifetime of the 1st defendant. The record does not show that the law rm that was on record for the defendants ever told the court that it was not representing the 1st defendant in the suit. 29. In the witness statement and defence dated 8.11.2019, the court takes judicial notice of the relationship between the 1st and 2nd defendants out of a power of Attorney allegedly used to transfer the suit property to the 2nd defendant. The notice of appointment dated 19.9.2016 makes it clear that the 1st and 2nd defendants took the same law rm to represent them. 30. Therefore, if at all there was a change of legal representation, the easiest thing would have been to le and serve a notice to that eect. 31. The law is that it is through a summons to enter appearance that a party is invited to defend himself. It is the 1st defendant who led a statement of defence. Therefore, the 1st defendant and, by extension, the 1st and 2nd defendants are estopped in law from denying service of the summons to enter appearance, as a copy is in the court le which was lodged alongside the plaint and also from denying legal representation. The court record shows that Mr Ashford Mugwuku was appearing for both defendants. 32. As to whether the 1st defendant was substituted, or not, the court record shows that an application dated 31.8.2021 to substitute the 1st defendant was allowed on 8.1.2021. It is after such substitution that Mr Ashford Mugwuku appeared in court on 15.3.2022 to represent the estate of the deceased 1st defendant. Learned counsel for the estate, cannot turn around and deny what they told the court that day or allege that they did not know of the substitution. 33. Indeed, counsel is on record saying that he needed time to le a notice of appointment and obtain the le from the former law rm for the defendants. It is on that basis that the defence hearing was adjourned on 15.3.2022 and given a date of 3.10.2022 for the defence hearing. 34. Coming to the death of the plainti, this was reported to the court in the presence of the 1st defendant's counsel on 23.2.2023, who did not object to the application to conrm the prayers for substitution. Up to that stage, the issue of the appearance of the 1st defendant had not been raised as regards substitution. The 1st defendant contends that the substitution for the defendant, reinstatement of the suit and extension of time to do so, was made ex parte. The 1st defendant submits that there is no pending suit, the court became functus ocio and that the subsequent pleadings and proceedings, post making the suit abated, are irregular. 35. It is not in dispute that the court on 19.6.2024 marked the suit as abated under Order 24, Civil Procedure Rules 36. . Before doing so, the court had been told of the eorts to seek and obtain letters of grant ad litem. It is the decision that the deceased party was at liberty to move the court once the paperwork was ready. 37. The law is that under Order 24 Rule 7(2) Civil Procedure Rules, a party may revive an abated suit on sucient cause being demonstrated. There is on record an application dated 20.8.2024 which was served upon the former law rm on record for the defendants and brought to the attention of the current lawyer for the 1st defendant. 38. The court ordered it be re-served upon him, and leave was granted to le a response. A date was also given for interparties hearing in the presence of Mr Mugwuku Ashford for the 1st defendant. Learned counsel failed to appear in court on the scheduled date. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5757/eng@2026-09-23 4

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39. The law is not that every party must be heard. So long as a party is allowed to be heard and fails to take advantage of the same, he can only be heard to say why he failed to exploit the opportunity to be heard when it was availed to him. 40. Learned counsel for the applicant does not deny appearing in court and telling the court he had instructions from the family of the deceased 1st defendant and thereafter knowing that the matter was scheduled for defence hearing. Learned counsel did not appear later on in court after the plainti passed on and later afterwards on 15.10.2024. 41. This was long after he had been granted time to le a notice of appointment or change of advocates on 15.3.2022. Directions on the hearing of the application were given in the presence of Mr Ashford Mugwuku. Learned counsel has not told the court why he did not comply with those directions or appear for interparties hearing on 21.11.2024, when the court made its nding that the application was not opposed. 42. The court's discretion to revive an abated suit was discussed in Sadi Swertem Gheitam Sannum vs Commissioners of Lands and ve others (2015) eKLR. The court said that the death of a plainti did not cause the suit to abate if the cause of action survived. The court said that, for good reason, the legal representative of the deceased plainti may apply for the abated suit to be revived after satisfying the court that he was prevented by sucient cause from continuing with the suit. 43. In Rebecca Mijide Mungole & Another Vs KPLC Ltd & Others (2019) eKLR, the court said that there are stages to follow to invoke Order 24 Rules 3(2) & 7(3) CPR, so long as there is a readable and plausible explanation to persuade the court to nd justication in exercising judicial discretion in favour of the applicant. 44. Sucient cause in law, as held in AG vs LSK & Another, Civil Appeal No. 133 of 2011, means the burden placed on the litigant to show why a request should be granted or action excused. In this application, the burden is on the applicant to show, rationally, plausibly, logical, convincing, readable and truthful cause why, despite knowledge of the application for revival of the abated suit and leave granted to respond or attend the hearing, the applicant failed to show up or respond and why this court should revisit its orders and or reinstate the earlier ones marking the suit as abated. A court of law must not treat abetment as an automatic or mechanical outcome. 45. It is not the law that once a suit is marked as abated, the court lacks discretion to revisit the issue. That is why the law says that a sucient cause is shown on suit that has abated may be reviewed. This is what Order 24 Rule 7(2) of the Civil Procedure Rules provides. An extension of time is allowed under Order 50 of the Civil Procedure Rules. 46. Article 159 (2) d of the Constitution, as read together with sections 1A,1B & 3A of the Civil Procedure Act, further mandates the court to exercise the powers with a view to achieving the objectives of facilitating the just, expeditious, proportionate and aordable resolution of disputes. 47. Order 24 Rule 3 & 4 of the Civil Procedure Rules are clear on extension upon sucient cause shown. The language used in Order 24 of the Civil Procedure Rules, as held in Rebecca Mijide Mungoe & Another vs KPLC & Others (2017) eKLR, does not impede the court from exercising its inherent equitable jurisdiction in extraordinary circumstances. 48. A justice-oriented interpretation of the law is what the court applied on 21.11.2020 to review, vary or set aside its earlier orders made on 19.6.2024. The applicant wants the court to nd that it acted irregularly in revisiting its orders. In Ndambo vs Ndambo (2022) KEHC 14723 KLR, the court held https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5757/eng@2026-09-23 5

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that a rigid, literalist approach to abatement provisions was inconsistent with the court’s duty to do substantive justice. 49. Abatement under Order 24 of the Civil Procedure Rules cannot be said to be absolute and amounting to functus ocio. The applicant, as indicated above, was given a chance to oppose the revival. He is therefore caught up by the doctrine of equitable estoppel to deny the obvious, as held in Amalgamated Investment & Properties Company Ltd. VS Texas Commerce International Bank Ltd (1982) 4B & 4. 50. Procedural rules, as held in Nicholas Kiptoo Arapn Korir Salat Vs IEBC & others (2014) eKLR, hand maiden of justice and should not be elevated to an end in themselves. In Janki Vashdo Bhojwani vs Induslnd Bank Ltd. (2005) 2SCC217; AIR 2005 SC 439 and in State of Punjab vs Nathu Ram; AIR 1962 SC 89; (1962) 2SCR 636, the court held that the doctrine of abatement cannot be used as a technical device to defeat substantive right where the spirit of justice demands otherwise . 51. Applying the foregoing case law, the court, in the context and of the circumstances, nds the notice of motion dated 1.12.2025 not only an afterthought, misleading, and incompetent, but also lacking merit. It is hereby dismissed with costs. 52. Orders accordingly. DATED, SIGNED AND DELIVERED ON 23RD SEPTEMBER,2026 HON C.K NZILI JUDGE In the presence of ; Miss Maranya & Mugwuku for defendant Miss Asli for the plainti COURT ASSISTANT; Julius https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5757/eng@2026-09-23 6

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