Joyce Wambui Mbau v Purity Wambui Wamwea & Others (Application by Kennedy Murigi Mbau)

issued on 11th July 2023 in Nairobi High Court Succession Cause No. E491 of 2022 (Estate of Joyce Wambui Mbau); iii. That an order be issued reviving the suit herein and that the order of 11th November 2024 (Eboso J.) declaring the suit abated be set aside; and iv. That costs be in the cause. 3. The application is supported by the grounds on its face and by the Supporting Affidavit of the Applicant sworn on 13th November 2025. It is opposed by the 1st Defendant/Respondent through her Replying Affidavit sworn on 20th November 2025. With leave of the Court granted on 20th November 2025, the Applicant filed a Further Affidavit sworn on 16th January 2026. Background 4. The background of the Suit herein is that it was instituted in 2017 by Joyce Wambui Mbau (hereinafter "the deceased Plaintiff") against the 1st, 2nd and 3rd Defendants. The subject matter of the suit is the parcel of land known as L.R. No. 76/534, Original No. 76/381/151, situated South East of Kiambu Township (hereinafter "the suit property"). 5. The deceased Plaintiff died on 14 th June 2020 while the suit was pending. No application for substitution was made within one year of her death. By an order made on 11 th November 2024, this Court (Eboso THIKA ELCC 829 OF 2017 (RULING) Page 2

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J.) declared that the suit stood abated and that, unless revived, it would remain abated. 6. The present application is the latest in a series of applications that the Applicant has filed in an effort to revive the suit. It is against that background that the present application falls for determination. The Applicant's Case 7. The Applicant deposes that he is the son of the deceased Plaintiff and of the late Francis Mbau Murigi. He states that the deceased Plaintiff died on 14th June 2020, during the pendency of this suit and at the height of the COVID-19 pandemic. He produced a copy of her Certificate of Death. 8. He avers, on the advice of his advocates, that the cause of action in this suit survives the deceased Plaintiff. He contends that, owing to the prevailing COVID-19 pandemic at the time of her death and thereafter, the beneficiaries of her estate were unable to petition for letters of administration in good time, and in any event not within the one year contemplated by law. 9. The Applicant acknowledges that the suit abated in June 2021 and that this Court declared it abated on 11 th November 2024. He states that a Grant of Letters of Administration Intestate in respect of the estate of the deceased Plaintiff was subsequently issued on 11th July 2023 in THIKA ELCC 829 OF 2017 (RULING) Page 3

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Nairobi High Court Succession Cause No. E491 of 2022, and that he is one of the administrators named in the grant. 10. It is the Applicant's position that, in his capacity as administrator, he applied for revival of the suit by an application dated 11 th November 2024, which was dismissed for want of attendance by his previous advocates. He further states that his previous advocates filed a similar application dated 22nd May 2025 which was irregular and failed to seek substitution upon revival and that the said application has since been withdrawn. He exhibited the said application and the Notice of Withdrawal. 11. On his interest in the suit property, the Applicant deposes that the suit property was at all material times registered in the name of his late father, Francis Mbau Murigi, and he exhibited an Indenture of Conveyance dated 31st December 1994 issued under the Government Lands Act (Cap 280, now repealed). He states that the deceased Plaintiff was, until her death, the administrator of the estate of Francis Mbau Murigi, and that he himself holds a Grant of Letters of Administration Ad Litem over the said estate issued on 25 th November 2024 in Thika Chief Magistrate's Court Succession Miscellaneous Cause No. E152 of 2024, limited to the purpose of substitution in this suit. THIKA ELCC 829 OF 2017 (RULING) Page 4

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12. The Applicant contends that he has demonstrated that he was prevented by sufficient cause from continuing with the suit, and that it is just that he be substituted for the deceased Plaintiff so that the suit may be heard and determined on its merits. He further avers that the Defendants will suffer no prejudice if the orders sought are granted, since they will have their day in court. The 1st Respondent's Case 13. The 1st Defendant opposed the Application by filing a Preliminary Objection dated 20th November 2025 and a Replying Affidavit sworn on the even date by Purity Wambui Wamwea. 14. Through her Replying Affidavit she deposes that the application is incompetent, vexatious and res judicata, being a regurgitation of previous applications by the Applicant, all of which have been dismissed. 15. In support of that contention, she cites three earlier applications: i. An application dated 11th November 2024, which she states was dismissed with costs on 16th January 2025 (annexure "PWW 1"); ii. An application dated 21st January 2025, which she states was dismissed on 21st May 2025 (annexure "PWW 2"); and iii. An application filed in Thika ELC Miscellaneous Application No. E007 of 2025, Kennedy Murigi Mbau v Purity Wambui Wamwea THIKA ELCC 829 OF 2017 (RULING) Page 5

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& Others, which she states was dismissed on 21st May 2025 (annexure "PWW 3"). 16. The grounds set out in the Preliminary Objection are that the application is an abuse of the court process and res judicata as orders sought have been dealt with in earlier applications as enumerated hereinabove. 17. The 1st Respondent contends that the Applicant is non-suited and is engaged in a vexatious adventure, and she urges the Court to bring the matter to an end by dismissing the application. She avers that the suit abated in 2021 upon the death of the deceased Plaintiff in 2020, and that the order of 11th November 2024 merely confirmed the legal position of the suit. In her view, it is therefore illogical to seek to set aside that order, since it did no more than recognise the effect of the law in the absence of substitution. 18. The 1st Respondent further deposes that the Applicant was at all times represented by counsel and was aware of the abatement, yet he has offered no plausible explanation for failing to seek substitution for a period of four years. She terms the delay inexcusable and states that no sufficient cause prevented the Applicant from moving the Court in good time. 19. On the merits, she asserts that the suit property, which she describes as L.R. No. 76/53, Original Number 76/381/151, belongs to her exclusively, and that she will be gravely prejudiced if the suit is THIKA ELCC 829 OF 2017 (RULING) Page 6

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revived and she is kept in court nine years after it was filed. Finally, she contends that the Applicant is bent on misleading the Court and making a mockery of its orders by filing what are, in substance, the same applications under the guise of new proceedings, and that the present application is an abuse of the court process which ought to be struck out in limine. The Applicant's Further Affidavit 20. In response to the Replying Affidavit and to a Preliminary Objection the Applicant swore a Further Affidavit on 16 th January 2026. He contends that the plea of res judicata is misconceived, hollow and unsubstantiated in fact and in law. The Applicant points out that annexures "PWW 1", "PWW 2" and "PWW 3" are mere certificates of urgency. He argues that the substantive motions have not been exhibited to show that the orders sought in the earlier applications were similar to those sought in the present application. He further argues that the rulings in those applications have not been exhibited to show that they were heard and determined on their merits. 21. He contends that the 1st Respondent has failed to demonstrate that the orders now sought, namely extension of time, substitution and revival of the suit, were sought earlier and determined on merit by a court of competent jurisdiction, and that she has therefore not met the threshold for a plea of res judicata. THIKA ELCC 829 OF 2017 (RULING) Page 7

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22. The Applicant maintains that the delay in bringing the present application has been sufficiently and reasonably explained and is, in any event, not inordinate. He further maintains that he and the estate of the late Francis Mbau Murigi have a direct proprietary interest in the suit property. He contends that the 1 st Respondent cannot continue to rely on a title whose registration has been challenged on grounds of fraud and illegality, allegations to which she has not responded. 23. He urges the Court to allow the application so that all the issues between the parties over the suit property may be heard and conclusively determined. 24. The application was canvassed by way of written submissions. The Applicant's submissions were filed in January 2026, and the 1st Respondent's submissions are dated 10th February 2026. Analysis and Determination 25. Having considered the application, the affidavits on record and the submissions, the Court is of the view that the following issues fall for determination: i. Whether the present application is res judicata or otherwise an abuse of the process of the Court; ii. Whether the Applicant has shown sufficient cause to warrant extension of time, the setting aside of the order of 11th THIKA ELCC 829 OF 2017 (RULING) Page 8

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November 2024 and the revival of the suit under Order 24 Rule 7(2) of the Civil Procedure Rules; iii. Whether the Applicant should be substituted for the deceased Plaintiff; and iv. Who should bear the costs of the application. 26. Before addressing the issues, I have perused the record of this Court to establish the history of the matter. The record discloses the following. On 11th November 2024, the matter came up before Eboso J. for hearing of an application. The Court ordered that the suit stands abated and that, unless it is revived, it remains abated. I confirm that this order is on record. 27. I also note that there is an application dated 19 th March 2024 which was never canvassed. The firm of J. Wangechi & Co. Advocates, acting for Catherine Wangui Mbau alias Catherine Mbau, sought to have the deceased Plaintiff substituted with Catherine Wangui Mbau. From the material placed before me, I understand Catherine Wangui Mbau to be the Applicant's sister. She is also one of the three administrators named in the Grant of Letters of Administration issued on 11th July 2023 over the estate of the deceased Plaintiff. The Applicant makes no mention of that application in the present application or in any of his affidavits. 28. By an application dated 11th November 2024, filed by Messrs. Mutali Wanyama & Co. Advocates on behalf of the Applicant, the Applicant THIKA ELCC 829 OF 2017 (RULING) Page 9

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sought, among other orders, the setting aside of an order dismissing the suit and the reinstatement of the suit. That application did not seek substitution. It was dismissed on 16th January 2025. 29. The Applicant also filed Thika ELC Miscellaneous Application No. E007 of 2025, Kennedy Murigi Mbau v Purity Wamwea & Others. That application was dismissed by a ruling delivered on 21st May 2025. 30. By a further application dated 22nd May 2025, filed by the same firm of Messrs. Mutali Wanyama & Co. Advocates, the Applicant again sought the setting aside of an order dismissing the suit and the reinstatement of the suit for hearing on its merits. That application did not seek substitution. It was withdrawn by a Notice of Withdrawal dated 13th November 2025, and the present application was filed on the same date by the Applicant's current advocates. The record of this suit does not disclose a separate application dated 21 st January 2025. The certificate of urgency bearing that date, exhibited as "PWW 2", is identical to the one exhibited as "PWW 3", and the e-filing record shows that a certificate of urgency was placed before the court in ELC Misc. No. E007 of 2025 on 22nd January 2025. I am satisfied that "PWW 2" and "PWW 3" relate to the same application, namely the Miscellaneous Application. (a) Whether the application is res judicata otherwise an abuse of the process of the Court. THIKA ELCC 829 OF 2017 (RULING) Page 10 or

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31. Section 7 of the Civil Procedure Act on res judicata reads as follows: "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." 32. Further, Black's Law Dictionary, 10th Edition, defines "res judicata" as: "An issue that has been definitely settled by judicial decision… the three essentials are: (1) an earlier decision on the issue; (2) a final judgment on the merits; and (3) the involvement of the same parties, or parties in privity with the original parties…" 33. The Court in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] eKLR set out the elements that must be established for a plea of res judicata to succeed: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title or claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision. THIKA ELCC 829 OF 2017 (RULING) Page 11

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34. To constitute res judicata, there must be an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The 1st Respondent contends that the instant application was previously litigated through the application dated 11th November 2024, which was dismissed on 16 th January 2025; an application dated 21st January 2025; and Thika ELC Miscellaneous Application No. E007 of 2025, Kennedy Murigi Mbau v Purity Wamwea & Others, which was dismissed on 21st May 2025. Therefore, do the earlier determinations of this Court on 16th January 2025 and on 21st May 2025 render the instant application res judicata? 35. The application dated 11th November 2024 sought the setting aside of an order dismissing the suit and the reinstatement of the suit. It did not seek extension of time, substitution or revival of an abated suit. Further, both parties agree that it was not heard on its merits. The Applicant states that it was dismissed for non-attendance of his previous advocates, while counsel for the 1st Respondent submits that it was dismissed for want of prosecution. A dismissal of that nature does not conclusively determine the rights of the parties, and there was no final decision on the merits. 36. Thika ELC Miscellaneous Application No. E007 of 2025 was brought in a separate cause, and not in this suit. An application for substitution and revival under Order 24 of the Civil Procedure Rules is made in the suit itself. The 1st Respondent has not demonstrated that the ruling of THIKA ELCC 829 OF 2017 (RULING) Page 12

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21st May 2025 conclusively determined the Applicant's right to be substituted and to have this suit revived. 37. As to the application dated 21st January 2025, the record of this suit does not disclose a separate application of that date. The certificates of urgency exhibited as "PWW 2" and "PWW 3" are identical, and I am satisfied that they relate to the Miscellaneous Application. The application dated 22nd May 2025 was withdrawn before it was heard, and was not determined at all. The application dated 19 th March 2024 was brought by Catherine Wangui Mbau, not by the Applicant, and the 1st Respondent does not rely on it. 38. On this basis, the contention by the 1st Respondent that the instant application offends the principle of res judicata fails. None of the earlier applications conclusively determined the Applicant's right to be substituted and to have the suit revived. 39. I have also considered whether the application is otherwise an abuse of the process of the Court. The multiplicity of applications is of concern, but each of the earlier applications sought the reinstatement of a suit that had not been dismissed but had abated. The present application is the first by the Applicant to seek substitution and revival. I do not find it to be an abuse of process, although the Applicant's conduct, including his failure to disclose the application dated 19th March 2024, is relevant to costs. THIKA ELCC 829 OF 2017 (RULING) Page 13

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40. In view of the foregoing, I find no merit in the 1 st Respondent's Preliminary Objection dated 20th November 2025, and the same is dismissed. (b) Whether sufficient cause has been shown for extension of time and revival of the suit. 41. Order 24 Rule 3(1) of the Civil Procedure Rules provides that where a sole plaintiff dies and the cause of action survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party. Rule 3(2) provides that where, within one year, no such application is made, the suit shall abate so far as the deceased plaintiff is concerned. The Court may extend that time for good reason. Rule 7(2) then provides that the legal representative of a deceased plaintiff may apply for an order to revive a suit which has abated, and that if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive it upon such terms as to costs or otherwise as it thinks fit. 42. I agree with the 1st Respondent that abatement takes effect by operation of law. As the Court of Appeal held in Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through the Attorney General) & 5 Others [2015] eKLR, an abated suit ceases to exist in the eye of the law. The order of 11 th November 2024 did no more than THIKA ELCC 829 OF 2017 (RULING) Page 14

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record that position. The operative relief is therefore revival under Rule 7(2). If revival is granted, the order declaring the suit abated necessarily ceases to have effect, and the prayer to set it aside is consequential. 43. Whether sufficient cause has been shown is a matter of judicial discretion, which must be exercised on sound principles. The Court considers the length of the delay, the explanation offered for it, and the prejudice to the other side. As the Court of Appeal held in Gachuhi & another (Suing as the Managers of the Estate of Margaret Wanjiru Gachui) v Wanjohi & 5 others [2022] KECA 473 (KLR), Article 159(2)(d) of the Constitution does not come to the aid of a party who has been indolent. 44. The chronology is as follows. The deceased Plaintiff died on 14 th June 2020, and the suit abated by operation of law in June 2021. The Grant of Letters of Administration over her estate was issued on 11 th July 2023. On 19th March 2024, Catherine Wangui Mbau, one of the administrators, applied for substitution. On 11th November 2024, the Court declared the suit abated, and the Applicant filed an application on the same day. The subsequent applications followed as set out above, and the present application was filed on 13 th November 2025. The Applicant attributes the initial delay to the COVID-19 pandemic. I accept that the pandemic disrupted movement and court operations in 2020 and 2021 and that it explains part of the delay in obtaining THIKA ELCC 829 OF 2017 (RULING) Page 15

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representation. It cannot, however, account for the entire period up to July 2023. That part of the delay has not been fully explained. 45. The 1st Respondent's contention that nothing was done for four years is, however, not borne out by the record. Within about eight months of the grant, one of the administrators of the estate had applied for substitution and that application was before the Court during 2024. The e-filing record exhibited by the 1 st Respondent herself shows that the matter was before the Court on several occasions between June 2023 and November 2024. On the day the Court declared the suit abated, the Applicant filed an application seeking to restore it. This is not the conduct of an estate that had gone to sleep on its rights. The estate's representatives were in Court, although they took the wrong procedural steps. 46. After 11th November 2024, the lapses were largely those of the Applicant's former advocates. They sought the reinstatement of a suit that had not been dismissed, failed to attend court when the application of 11th November 2024 came up, and filed a further application that again omitted a prayer for substitution. In Philip Chemwolo & another v Augustine Kubende [1986] KLR 492, the Court of Appeal cautioned that a blunder by counsel should not necessarily be visited on the litigant. I have noted the 1st Respondent's submission that the Applicant's remedy lies against his former advocates. That THIKA ELCC 829 OF 2017 (RULING) Page 16

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remedy does not, however, displace the discretion this Court is required to exercise under Rule 7(2). 47. The present case is distinguishable from Said Sweilem (supra) and Gachuhi (supra). In those cases, there were long periods of total inaction. Here, the record shows continuous, if somewhat misdirected activity on the part of the estate. 48. On prejudice, the 1st Respondent says she will be gravely prejudiced if she is kept in court. The suit, however, concerns title to land that, according to the Indenture of Conveyance on record, was conveyed to the late Francis Mbau Murigi in 1994. It raises allegations of fraud against the registration of the 1 st Respondent's title. Those are serious questions that ought to be determined on their merits. The prejudice to the 1st Respondent from the delay can be addressed by an award of costs. 49. By contrast, declining revival would finally shut out the estate's claim to the land without a hearing. Articles 50(1) and 159(2)(b) and (d) of the Constitution, together with Sections 1A and 1B of the Civil Procedure Act, favour a determination on the merits in these circumstances. I am therefore satisfied, although not without hesitation, that sufficient cause has been shown for the extension of time and for the revival of the suit. THIKA ELCC 829 OF 2017 (RULING) Page 17

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(c) Whether the Applicant should be substituted for the deceased Plaintiff. 50. Under Order 24 Rule 3(1) of the Civil Procedure Rules, the person to be made a party in place of a deceased plaintiff is her legal representative. Section 82(a) of the Law of Succession Act empowers personal representatives to enforce, by suit or otherwise, all causes of action that survive the deceased. 51. The Grant of Letters of Administration dated 11 th July 2023 over the estate of the deceased Plaintiff names three administrators: Susan Judy Njeri Mbau, Catherine Wangui Mbau and the Applicant. The coadministrators have not joined in the present application. Moreover, one of them, Catherine Wangui Mbau, has herself sought to be substituted for the deceased Plaintiff, by the application dated 19 th March 2024. It appears that the administrators chose to move separately and that the Applicant did not disclose his sister's application to this Court. 52. Both applications, however, seek the same end, namely that the estate's claim to the suit property be prosecuted. Nothing on record suggests that either co-administrator opposes the suit being prosecuted by the Applicant. In addition, the Applicant holds a Grant of Letters of Administration Ad Litem over the estate of the late Francis Mbau Murigi, issued on 25th November 2024 in Thika Chief Magistrate's THIKA ELCC 829 OF 2017 (RULING) Page 18

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Court Succession Miscellaneous Cause No. E152 of 2024 and limited to substitution in this very suit. The late Francis Mbau Murigi is the person in whose name the suit property was conveyed, and the deceased Plaintiff was the administrator of his estate until her death. 53. I am therefore satisfied that the Applicant has the capacity to be substituted as Plaintiff. To protect the interests of the estate as a whole, however, the amended plaint shall be served on the co-administrators, Susan Judy Njeri Mbau and Catherine Wangui Mbau, who shall be at liberty to apply to be joined as co-plaintiffs. (d) Costs 54. Under Section 27 of the Civil Procedure Act, costs follow the event unless the Court for good reason orders otherwise. The Applicant has succeeded, but he the 1st Respondent has been put to the expense of responding to several applications. It is fair and just that the 1 st Respondent is awarded the costs of the present application and of the Preliminary Objection. 55. Order 24 Rule 7(2) of the Civil Procedure Rules empowers the Court to revive an abated suit "upon such terms as to costs or otherwise as it thinks fit". The application dated 11 th November 2024 was dismissed with costs on 16th January 2025, and the Applicant has not shown that those costs have been paid. A party who returns to court seeking an indulgence ought first to settle the costs already awarded against him THIKA ELCC 829 OF 2017 (RULING) Page 19

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in the same quest. I will therefore make revival subject to the payment of those costs, together with the costs awarded in this Ruling. 56. In the upshot, I make the following orders: a. The Preliminary Objection dated 20th November 2025 is dismissed. b. The Notice of Motion dated 13th November 2025 is allowed on the terms set out below. i. Time for substitution of the deceased Plaintiff is extended. ii. The suit is revived and the order of 11 th November 2024 declaring the suit abated is set aside. iii.Kennedy Murigi Mbau, in his capacity as administrator of the estate of Joyce Wambui Mbau (deceased) and as administrator ad litem of the estate of Francis Mbau Murigi (deceased), is substituted as the Plaintiff in place of Joyce Wambui Mbau (deceased). c. The costs of the present application and of the Preliminary Objection are awarded to the 1st Defendant/Respondent. d. The substituted Plaintiff shall file and serve an amended plaint reflecting the name of the substitute Plaintiff and correctly describing the suit property within fourteen (21) days of this Ruling. The Defendants shall be at liberty to file and serve amended defences within fourteen (14) days of service. THIKA ELCC 829 OF 2017 (RULING) Page 20

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Dated, Signed and Delivered, virtually at Malindi this 29 th day of September 2026. …………….………….. J. M. ONYANGO JUDGE In the presence of: 1.Kennedy Murigi Mbau, Applicant 2. No appearance for the Respondents Court Assistant: Happy. THIKA ELCC 829 OF 2017 (RULING) Page 21

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