Zho v Smk

Murunga Kasuti; from harassing the Applicant and interfering with her possession and occupation of LR No. Nairobi/Block 91/xx (hereinafter referred to as the “suit property”). c. That pending the inter partes hearing and determination of the main suit herein this honourable court be pleased to issue order of injunction restraining the Respondents either by themselves, agents, employees or representatives, and any person claiming through Suleiman Murunga Kasuti; from harassing the Applicant and interfering with her possession and occupation of LR No. Nairobi/Block 91/xx (hereinafter referred to as the “suit property”). d. That this honourable court be pleased to issue order of injunction restraining the Respondents either by themselves, agents, employees or representatives, and any person claiming through Suleiman Murunga Kasuti; from harassing the Applicant and interfering with her possession and occupation of LR No. Nairobi/Block 91/xx, unless and until succession proceedings regarding LR No. Nairobi/Block 91/xx are heard and determined. e. That Costs of this Application be provided for. 3. The application was supported by the plaintiff’s affidavit. She deposed that she was married to the defendant, who is now deceased, under Luhya customary law in 1982, and that the couple moved into the suit property in 1985, where they raised their children. She averred that although the deceased later deserted the matrimonial home, their marriage was never dissolved. 4. She further deposed that the deceased passed away on 30th October 2024 while the present suit was pending before the court. Following his death, the respondent applicants allegedly began interfering with the suit property by sending individuals to harass and intimidate her with the intention of evicting her from the matrimonial home. 5. The applicant alleged that individuals sent by the respondents attempted to forcibly remove her from the property on 20th November 2024 and later returned on 4th January 2025, when they allegedly destroyed part of her house. She stated that the suit property has been her home since 1985, that she has no alternative residence, and that the respondents’ actions are intended to evict her before succession proceedings relating to the estate of the deceased are undertaken. She therefore seeks injunctive orders restraining the respondents from interfering with her possession and occupation of the suit property. Second Application 6. 7. The applicant prayed for the following orders: a. Spent; b. That pending the inter partes hearing and determination of the application herein this honourable court be pleased to issue orders directing the OCS Gigiri Police Station to ensure compliance with the Orders granted by this honourable court on 4th February 2025. c. That pending the inter partes hearing and determination of the application dated 23rd January 2025 this honourable court be pleased to issue orders directing the OCS Gigiri Police Station to ensure compliance with the Orders granted by this honourable court on 4th February 2025. d. That Costs of this Application be provided for. The application was supported by the applicant’s affidavit. She deposed that the court had earlier issued status quo orders on 30th April 2024, requiring that possession of the suit property be maintained pending the hearing of the suit. She further stated that the court issued similar orders on 4th February https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3672/eng@2026-03-17 2

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2025, maintaining the status quo pending the hearing and determination of the application dated 23rd January 2025. 8. The Applicant contended that despite the existence of these court orders, the respondents have refused and/or failed to comply with them. She alleged that on 8th May 2025, individuals allegedly sent by the respondents attempted to evict her and her family from the property and damaged her shelter. She further avers that she and her son were forced to sleep in a tent on the property after part of her house had earlier been demolished. 9. She further states that on 14th May 2025, the respondents allegedly sent additional individuals, accompanied by contractors who began digging trenches around the boundary of the property and later brought construction materials onto the land. The applicant believes that these actions are intended to construct a wall around the property and completely lock her out of her matrimonial home. 10. The Applicant stated that she sought assistance from the police to enforce the court orders, but was informed that the police could not intervene without a specific court order directing them to do so. She therefore seeks orders directing the OCS Gigiri Police Station to ensure compliance with the court orders issued on 4th February 2025. Third Application 11. The 2nd respondent sought orders relating to the abatement of the suit following the death of the defendant. She prayed for the following orders:a. Spent; b. That pending the hearing and determination of this application, this Honourable Court be pleased to arrest its Ruling in respect of the Plaintiff’s application dated the 23rd January, 2025, and 2nd Respondent’s Preliminary Objection dated the 28th January, 2025 that is set/scheduled to be delivered on the 27th November, 2025. c. That upon the hearing of this application, this Honourable Court be pleased to issue an Order declaring that the suit has abated as of the 30th of October, 2025, and thus there is no longer any suit nor proceedings capable of determination by the court. d. That this Honourable Court be pleased to award the costs of this application as well as the suit to the 2nd Respondent herein. 12. The application was supported by the 2nd respondent’s affidavit. She deposed that the suit was instituted by the Plaintiff through a plaint dated 9th December 2020, seeking, among other reliefs, a declaration that LR No. Nairobi/Block 91/xx constituted matrimonial property. However, the Defendant passed away on 30th October 2024. She avered that more than one year has elapsed since the death of the defendant without the Plaintiff making any application for substitution of the deceased with his legal representative. 13. The 2nd respondent contended that under Order 24 Rule 3 of the Civil Procedure Rules, the suit automatically abated on 30th October 2025 by operation of law. She further stated that the court had scheduled delivery of a ruling on 27th November 2025 in respect of the plaintiff’s application dated 23rd January 2025 and the respondents’ preliminary objection dated 28th January 2025. 14. It is therefore the 2nd respondent’s position that once the suit has abated, there is no subsisting suit upon which the court can render a determination, and any further proceedings would be an academic https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3672/eng@2026-03-17 3

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exercise. She therefore urges the court to declare that the suit has abated and to arrest the impending ruling. 15. The applications were not opposed. Determination 16. I have considered the applications, the affidavits and the entire record of the court. Given the three applications before the court, the issues for determination should be framed around the logical sequence of the applications and the legal effect of abatement. The issues for determination are as follows: a. Whether the present suit abated by operation of law following the death of the Defendant on 30th October 2024 and the failure to substitute him within the period prescribed under Order 24 Rule 3 of the Civil Procedure Rules. b. If the suit abated, whether the court can proceed to determine the Plaintiff’s applications dated 23rd January 2025 and 19th May 2025. c. Whether the Plaintiff/Applicant has satisfied the legal threshold for the grant of temporary injunctive orders restraining the Respondents from interfering with her possession and occupation of LR No. Nairobi/Block 91/xx. d. Whether the Applicant has established sufficient grounds to warrant orders directing the OCS Gigiri Police Station to enforce compliance with the court’s earlier orders issued on 4th February 2025. e. Who should bear the costs of the three applications? 17. The starting point is that it is not disputed, from the material placed before the court, that the original defendant died on 30th October 2024. That fact is expressly acknowledged in the Plaintiff’s own applications and is equally deponed to in the 2nd Respondent’s application. The question for determination is therefore not whether the Defendant died, but the legal effect of that death on the subsistence of this suit. 18. The applicable law is Order 24 Rule 3 of the Civil Procedure Rules. The rule provides, in substance, that where a sole defendant dies, and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party. The rule further provides that where no such application is made within one year of the defendant’s death, the suit shall abate as against the deceased defendant. The language of the rule is mandatory. It does not make abatement discretionary, nor does it require a formal declaration of abatement for the abatement to take effect. Once the statutory period lapses without substitution, abatement occurs by operation of law. 19. In the present matter, the defendant died on 30th October 2024. The statutory one-year period for substitution therefore lapsed on 30th October 2025. No material has been placed before the court showing that, within that one-year period, the plaintiff filed an application under Order 24 seeking to substitute the deceased defendant with his legal representative. 20. Equally, there is no evidence that a grant of representation was obtained and presented before this court for purposes of such substitution, nor is there any application for extension of time or revival that was made before the lapse of the statutory period. The record as presented to this court, therefore, supports the 2nd Respondent’s contention that no substitution was undertaken within time. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3672/eng@2026-03-17 4

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21. The court must also emphasise that substitution of a deceased party is not a procedural luxury. It goes to the competence of proceedings after death. Once a party dies, any further adjudication touching on his rights or liabilities in the suit can only lawfully proceed against a duly substituted legal representative. In the absence of substitution, the deceased party is no longer before the court in law, and the court cannot continue to determine substantive questions affecting his estate as though he were still alive. Order 24 was enacted precisely to avoid that procedural and jurisdictional vacuum. 22. The plaintiff’s applications dated 23rd January 2025 and 19th May 2025, though filed after the defendant’s death, did not cure that defect. Those applications sought injunctive and enforcement orders concerning the suit property, but they did not seek to bring on board the legal representative of the deceased defendant in accordance with Order 24 Rule 3. Put differently, the filing of interlocutory applications after the death of a party is not a substitute for a proper application for substitution. The law required the plaintiff to first regularise the proceedings by bringing on record the deceased defendant’s legal representative within one year. That was not done. 23. The 2nd respondent has urged the court to find that the suit abated automatically on 30th October 2025, and on the material before the court, that position is legally sound. Abatement under Order 24 Rule 3 is automatic and takes effect by effluxion of time. A court order declaring abatement is usually confirmatory of a legal consequence that has already occurred; it is not constitutive of that consequence. Thus, as at 30th October 2025, and absent substitution, the suit stood abated as against the deceased Defendant. 24. I have also considered whether the nature of the dispute, being one involving alleged matrimonial property and occupation of a matrimonial home, alters the position. It does not. However weighty or emotive the subject matter may be, parties remain bound by the procedural framework governing suits where a party dies. The importance of the property in dispute, or even the hardship alleged by the Plaintiff, cannot displace the mandatory requirements of Order 24. Procedure is the vehicle through which substantive rights are vindicated; where the law prescribes a clear step to preserve the suit, that step must be taken. 25. I therefore find that the death of the defendant on 30th October 2024, coupled with the failure to substitute him with his legal representative within one year as required by Order 24 Rule 3 of the Civil Procedure Rules, caused this suit to abate by operation of law on 30th October 2025. From that date, there ceased to exist a competent suit against the deceased defendant unless and until an application for revival, if available in law and properly made, was to be brought and allowed. 26. Having found that the suit abated by operation of law on 30th October 2025 for failure to substitute the deceased defendant within the period prescribed under Order 24 Rule 3 of the Civil Procedure Rules, the next question is whether the court can nonetheless proceed to determine the Plaintiff’s applications. 27. The legal effect of abatement is that the suit ceases to exist in law. Once a suit abates, there remains no subsisting cause upon which the court can exercise its adjudicatory powers unless the suit is first revived in accordance with the law. This position fiows directly from the wording of Order 24 Rule 3(2), which provides that where no application for substitution is made within one year of the death of a defendant, “the suit shall abate as against the deceased defendant.” The rule does not merely suspend proceedings; it extinguishes the suit in its existing form. 28. Consequently, any proceedings conducted in an abated suit would be devoid of legal foundation. The rationale for this rule is that once a party dies and is not substituted in accordance with the law, there is no legal person before the court capable of being bound by the orders that may be issued. The court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3672/eng@2026-03-17 5

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would therefore be acting in vain were it to continue determining substantive applications affecting the rights of a deceased person or his estate without a duly substituted legal representative. 29. In the present matter, the plaintiff’s applications seek, inter alia, injunctive relief restraining the respondents from interfering with her possession of LR No. Nairobi/Block 91/xx, and orders directing the OCS Gigiri Police Station to enforce compliance with earlier status quo orders issued by this court. While those applications were filed during the pendency of the suit, their determination necessarily presupposes the existence of a competent suit before the court. 30. However, following the abatement of the suit on 30th October 2025, the legal substratum upon which those applications stood ceased to exist. Interlocutory applications derive their validity from the main suit; they cannot survive independently once the suit itself has abated. In other words, the court cannot determine interlocutory prayers in a vacuum where the principal proceedings to which they are anchored no longer subsist. 31. It is also important to note that the Plaintiff did not file any application seeking revival of the suit under Order 24 Rule 7(2) of the Civil Procedure Rules, which would have been the proper procedural step after abatement. Until such revival is sought and granted, the court remains without jurisdiction to proceed with the merits of the interlocutory applications previously filed in the suit. 32. The court is therefore persuaded by the argument advanced by the 2nd respondent that proceeding to determine the plaintiff’s applications would amount to engaging in an academic exercise. Courts of law do not act in vain, nor do they issue orders in proceedings that no longer exist in law. To do so would offend the well-established principle that judicial authority must be exercised within the confines of a valid and subsisting cause. 33. Accordingly, this court finds that upon the abatement of the suit on 30th October 2025, the Plaintiff’s applications dated 23rd January 2025 and 19th May 2025 became incapable of determination, there being no subsisting suit upon which the court can lawfully adjudicate. consequently, I hereby allow the 2nd respondent’s application dated 4th November 2025. 34. On the issue of costs, the general principle as set out in Section 27(1) of the Civil Procedure Act is that costs follow the event, unless the court, for good reason, orders otherwise. In the present matter, the parties did not respond to the applications. Furthermore, the question of abatement arose primarily from the death of the defendant and the subsequent procedural lapse rather than from any substantive contest between the parties on the merits of the dispute. In the absence of opposition to the application and in order not to unnecessarily burden the parties with additional costs, the court is of the view that this is an appropriate case to depart from the general rule. Accordingly, each party shall bear their own costs of the applications. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF MARCH, 2026. ………………………………… E. K. OGOLA JUDGE In the presence of: M/s Maina……………for the Plaintiff. Mr. Bryan Khaemba…………for the Respondents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3672/eng@2026-03-17 6

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Gisiele Muthoni - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3672/eng@2026-03-17 7

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