BE
1. The Application dated 17th February 2026, subject of this Ruling seeks the substantive orders that; -
(i) The Honourable court be pleased to enlarge time for substitution of the deceased the 1st Defendant Michael Linkato Ololabura who died on 1st March 2025 pending the appointment of a legal representative of his Estate.
(ii) That the suit against the 1st Defendant be preserved and do not abate pending the conclusion of succession proceedings in HCPA E001 of 2026; Estate of Michael Linkato Olulabura commenced against the public trustee and any other person having a claiming interest in the 1st Defendant’s Estate.
(iii) That Applicant be granted leave to substitute the deceased 1st Defendant upon appointment of a Legal representative, including the public Trustee or any other lawful representative.
(iv) Costs of the Application.
2. Grounds in support of the application are interalia that;
(i) The deceased Michael Linkato Ololabura died on 1st March 2025 and the actin herein in so far as it relates to proprietary interest over Transmara/Kimintet D/1478 arising out of a sale transaction survives the deceased.
(ii) No legal representatives have been substituted and the delay is a mischievous intended to defeat justice, the Applicant has instituted succession proceedings by citing the Public Trustee, and the statutory period had not lapsed, and that no prejudice will be occasioned to the Respondents.
(iii) A supporting affidavit deponed by Peter Leshao Tunai supports the application, in which the deponent reiterates the grounds in support of the application, in his deposition and has annexed copies of the pleadings, including the citation.
3. The 4th to 7th Respondents filed grounds of opposition in which they indicate that
(I) the suit herein abated on 2nd of March 2026, hence there is no suit to be preserved.
(II) the court has no jurisdiction to hear and determine the matter that no steps were taken to substitute the Defendant, application was filed out of time.
4. No response was filed on behalf of the 1st Respondent who is now deceased while the 2nd Respondent equally did not file any response neither did the 1st and 2nd Interested parties. These parties did not take part in the application.
5. The Application was argued by way of oral submissions by Mr. Marete for Plaintiff/Applicant and opposed by Mr. Isayi for 4th to 7th Defendants/Respondents.
6. In brief Mr. Marete cited section 18 (c) of the ELC Act as giving court wide discretion including enlargement of time under Order 50 of the Civil Procedure Rule and Section 95 of the Civil Procedure Act. He submitted that the parties claiming to be the 1st Defendant’s wife and sons refused to take out succession proceedings necessitating citation proceedings to be commenced. Hence the request for extension of time to substitute the deceased, 1st defendant is in order so as for the matter to be heard on its merits.
7. On his part Mr. Isayi for Respondent placed reliance on the grounds of opposition, submitted that the application was overtaken by events as the suit had abated on 2nd of March 2026 by operation of the law hence depriving court of jurisdiction as there was no provision for extension of time under order 24 of the Civil Procedure Rules in respect of deceased defendant.
8. That the plaintiff ought to have taken the citation since 9th of June 2026; and that suit having abated ought to be revived first before substitution can be done.
9. In a brief rejoinder, Mr. Marete submitted that the court has discretion to extend time under order 24 of the Civil Procedure Rules.
Issues for Determination
10. Having analyzed the application, the submissions as well as considered the applicable law.
11. The court frames the following as issues for determination.
(i) Whether or not the suit herein has abated and whether the same can be revived vide the instant application?
(ii) Whether the application is merited.
(iii) What orders ought to issue.
Analysis and Determination
12. The application was filed on 17th February 2025 but no interim orders were issued as the orders sought are substantive in nature.
13. The application seeks extension of time for purposes of filing the substitution. It is stated that the 1st Defendant passed on 1st of March 2025 or thereabouts and the suit would be operation of the law abated have abated on 2nd of March 2026 or thereabouts. Order 24 Rule 1 provides that where the cause of action survives or continues the death of plaintiff or defendant shall not cause the suit to abate.
14. Consequently, since the cause of action herein survives the 1st defendant, under the provisions of order 24 Rule 1 the suit has not abated yet.
15. In arriving at the above I am guided by the Court of Appeal decision in Said Saileru Gheitan Saanum Vs. Commissioner of Lands (being sued through the Attorney General and 5 Others (2015) eKLR, where the court in respect of the provisions of Order 24 of the Civil Procedure Rules observed as follows; -
“there are three stages according to these provisions. As a general rule the death of a plaintiff does not cause the suit to abate if the cause of action survives. But within one year of the death of the plaintiff or within such time as the court may in its discretion for good reason determine, an application must be made for the legal representative of the deceased to be made a party the good reason therefore relates to application for extension of time to join the plaintiff’s legal representative to the suit.
Secondly, if no such application is made within one year, or within the time extended by leave of court, the suit shall abate where a suit abates no fresh suit can be brought on the same cause of action..”
16. Thus, in answer to issue number 1 the court finds that the suit has not abated as this application for leave for extension of time was made before the lapse of the said one year period, hence application was filed within time. The court finds that under the proviso of Order 24 (Rule 3(2)) of Order 24 it has jurisdiction to extend time once an application has been made as in this case.
17. The court equally finds that as the suit has not abated in view of the application for extension of time, having been filed within 1 year there is no need for the suit to be revived under the provision of Order 24 Rule 7(2) before substitution as submitted by Mr. Isayi for the Respondent.
18. On the merits of the application, the Applicant submits that there has been lethargy on the part of the 4th to 7th Defendant though described as the relatives of the 1st Defendant (now deceased) to take out letters of administration hence forcing the Applicant to take out citation proceedings which were heard on 6th of May 2026 and a Ruling thereof is pending before the High Court.
19. It follows that the Applicant is interested in pursuing his claim, even in the face of apparent disinterest from the relatives of the 1st Defendant, hence the application is merited, in order for ends of justice to be met.
20. On what reliefs ought to issue, having found merit in the application, the court allows the application in terms that; -
(i) Time is hereby extended to either the plaintiff or the 4th to 7th Defendants to file an application for substitution of the 1st Defendant. The said application to be filed within 90 days from date hereof.
(ii) Costs of the application to be in the cause.
Dated at Kilgoris this 7th day of July, 2026
Hon. M.N Mwanyale
Judge
In the presence of
CA – Sylvia/Sandra/Clara
Mr. Marete for applicant
Mr. Ranah for 2nd defendant
Mr. Isayi for 4th to 7th defendants
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