RULING
A. Prologue2. This application comes to court with an unusual stillness about it. The 17th Defendant, Nurdin Akasha Abdalla, died on 18th October 2025 while this litigation was yet alive. But litigation, once set in motion, does not always pause of its own accord; and so, months later, on 19th June 2026, judgment was rendered against all the Defendants, including one who had already passed beyond the reach of earthly contest.
3. It is against that background that Nargis Nurdin Akasha, having obtained letters of administration ad litem on 1st July 2026, now asks this Court to place her on the record in substitution for the deceased 17th Defendant, so that his estate may be heard in law, if not in life. The question is not merely whether a rule permits substitution. It is whether the law, while remaining faithful to its own order, can refuse to recognize an estate affected by a judgment entered after death.
4. It is that application which now falls for determination before this Court.
B. Introduction
5. Before this Court is the Notice of Motion dated 3rd July 2026 brought under Order 24 Rule 4(1) and (2) of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act. The Applicant seeks to be made a party to this suit in place of the deceased 17th Defendant, Nurdin Akasha Abdalla, as the personal representative of his estate.
6. The application is founded on the grounds that the 17th Defendant died on 18th October 2025; that judgment in this matter was delivered on 19th June 2026 after his death; that the cause of action survived him; and that the Applicant obtained letters of administration ad litem on 1st July 2026 from the Kadhi’s Court at Mombasa to enable her represent the estate and pursue appellate relief.
7. The application is supported by the affidavit of Nargis Nurdin Akasha sworn on 3rd July 2026. Annexed to the affidavit are a death certificate showing that Nurdin Akasha Abdalla Ibrahim died on 18th October 2025, and an order made in Mombasa Kadhi’s Court Misc. Succession Cause No. E010 of 2026 on 1st July 2026 issuing letters of administration ad litem to the Applicant.
C. The Application
8. By the Notice of Motion, the Applicant seeks three substantive orders: that the matter be certified urgent; that Nargis Nurdin Akasha be made a party to this suit in place of the deceased 17th Defendant as the personal representative of his estate; and that costs be in the cause.
9. The grounds set out on the face of the motion are that the 17th Defendant died on 18th October 2025; that the cause of action survived his death; that the Applicant obtained letters of administration ad litem on 1st July 2026; that judgment had already been delivered on 19th June 2026; and that substitution is necessary to enable the Applicant, as personal representative, to pursue an appeal against that judgment.
D. Material on Record
10. From the material placed before the Court, four facts stand out. First, the person sued as the 17th Defendant in these proceedings was Nurdin Akasha Abdalla.
11. Second, the death certificate annexed to the supporting affidavit shows that Nurdin Akasha Abdalla Ibrahim died on 18th October 2025. Third, the order exhibited from Mombasa Kadhi’s Court in Misc. Succession Cause No. E010 of 2026 shows that on 1st July 2026 the Applicant, Nargis Nurdin Akasha, was issued with letters of administration ad litem in respect of his estate.
12. Fourth, it is clear from the motion, affidavit and certificate of urgency that judgment in this matter was delivered on 19th June 2026, after the death of the 17th Defendant and before any substitution had been effected. The purpose of the present application is therefore to regularize representation of the estate in the wake of that judgment.
E. Directions on Submissions
13. The Court has considered the Notice of Motion Application, the supporting affidavit and annexures thereto, and the applicable legal framework governing substitution and the effect of death of a party. The issue, in the view of the Court, is one that is substantially legal and procedural, though with strong equitable implications.
F. Issues for Determination
14. The following issues arise for determination:
a. Whether the Applicant has established locus standi as the legal representative of the estate of the deceased 17th Defendant.
b. Whether the cause of action survived the death of the 17th Defendant.
c. Whether this Court, notwithstanding delivery of judgment, may in the peculiar circumstances of this case permit a limited substitution of the deceased 17th Defendant for purposes of post-judgment participation and appellate recourse.
d. What orders should issue as to costs.
G. Analysis and Determination
e. Whether the Applicant has established locus standi
15. On the first issue, the position is clear. The Applicant has exhibited an order of the Kadhi’s Court at Mombasa in Misc. Succession Cause No. E010 of 2026 issued on 1st July 2026 granting her letters of administration ad litem to the estate of Nurdin Akasha Abdalla Ibrahim. That grant is sufficient to clothe her with standing to move the Court and to represent the estate for the limited purposes for which such a grant is ordinarily issued.
16. The Court therefore finds that the Applicant has established the requisite legal capacity to represent the estate of the deceased 17th Defendant.
b. Whether the cause of action survived the death of the 17th Defendant
17. The dispute before the Court is an Environment and Land Court matter touching on rights and obligations concerning land and the parties to the suit. Such a cause of action is not extinguished merely because one of the parties dies; absent a purely personal claim, it ordinarily survives against the estate of the deceased party.
18. The Court is therefore satisfied that the cause of action survived the death of the 17th Defendant.
c. Whether substitution may be allowed after judgment in the peculiar circumstances of this case
19. Ordinarily, substitution under Order 24 is contemplated in live proceedings so that a suit may continue upon the death of a party. Strictly speaking, once judgment has been rendered, the trial court’s role is largely spent, and any challenge to the judgment falls to be mounted through the appellate structure established by law.
20. The Court of Appeal in JMK v MWM & another KECA 524 (KLR) stated as follows:
“We would however agree with the respondent that Order 1 Rule (10) (2) contemplates an application for amendment or joinder of parties where proceedings are still pending before the Court… an application for joinder of parties can be filed only in pending proceedings… it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable.”
22. Although that decision concerned joinder under Order 1 Rule 10(2), the principle of finality it articulates is instructive here. Courts are not at liberty to keep concluded suits perpetually open under the guise of procedural adjustment.
23. If this were an ordinary case, the Court might well have declined substitution at this stage and left the Applicant entirely to the appellate forum. But this case carries an unusual feature of great significance: the 17th Defendant died on 18th October 2025, yet judgment was later delivered on 19th June 2026 against all the Defendants, including him, before substitution had been sought or effected.
24. The Applicant then moved with reasonable promptitude, procured letters of administration ad litem on 1st July 2026, and filed the present application on 3rd July 2026. There is therefore no suggestion here of indolence, ambush, or abuse of process on the part of the estate.
25. The Court must be careful not to let procedure become an instrument of injustice. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others KECA 113 (KLR), the Court underscored the continuing importance of procedural rules, observing that:
“This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed.”
26. That principle is sound and this Court affirms it. But the present case is not one of disrespect for timelines. It is one of death intervening in the midst of litigation, followed by judgment against the deceased before representation had been regularized.
27. In such circumstances, fidelity to procedure must be matched by fidelity to fairness. Article 159 of the Constitution does not abolish procedure, but it does command courts to administer justice without undue regard to procedural technicalities. A court of justice must not, by rigid insistence on form, deny an estate even the juridical presence necessary to receive process, participate in post-judgment proceedings, and take lawful appellate steps where judgment has been entered after death.
28. This Court is therefore persuaded that the just course lies in a limited substitution. Such an order does not reopen the trial, disturb the evidence, or set aside the judgment. It merely recognizes the legal representative of the deceased on the trial court record for post-judgment purposes and for facilitation of any competent appellate process.
29. The Court takes guidance from the structure of Rule 102 of the Court of Appeal Rules, 2022, which shows that the law prefers representation to voids and continuity to silence in the event of death. That appellate rule does not directly govern the trial court’s power under Order 24, but it reflects a broader procedural policy that death should not unnecessarily defeat substantive justice where representation can lawfully be regularized.
30. The Court is also alive to the principle stated in JMK v MWM & another KECA 524 (KLR) that party adjustment is ordinarily tied to pending proceedings. Yet even that principle must be applied with sensitivity to the circumstances of the case before the court. Here, the court is not being asked to reopen a concluded trial on the merits by introducing an entirely new controversy or party interest after final disposal. It is being asked to recognize the representative of a party already on record, but who had died before judgment affecting his estate was delivered.
31. Lord Denning had a gift for reminding courts that the law should not be defeated by its own machinery. Cardozo, too, warned judges against surrendering justice to barren formalism. In the peculiar facts of this case, the more equitable course is to acknowledge the estate on the record, but to do so with a strict limitation: substitution shall be allowed only for post-judgment representation and facilitation of lawful appellate recourse, and not for reopening the merits already determined.
H. Conclusion and Disposal Order
32. The Court has weighed two competing considerations. On the one hand stands the principle of finality in litigation and the ordinary rule that substitution is intended for pending proceedings. On the other hand stands the imperative that the estate of a litigant who died before judgment should not be left without legal recognition where judgment was nevertheless entered affecting that estate.
33. In the special circumstances of this matter, the Court is satisfied that justice is better served by granting substitution than by refusing recognition altogether. That course preserves finality while avoiding the inequity of leaving the estate procedurally voiceless.
34. For the avoidance of doubt, this ruling does not reopen the trial, does not disturb the judgment delivered on 19th June 2026, and does not determine the merits of any intended appeal. It merely regularizes the representation of the estate of the deceased 17th Defendant on the record of this Court for post-judgment purposes and for facilitation of any lawful appellate steps.
I. Orders
39. In the result, the Court makes the following orders:
i. The Notice of Motion dated 3rd July 2026 is hereby allowed in part.
ii. Nargis Nurdin Akasha, being the holder of letters of administration ad litem issued on 1st July 2026 in Mombasa Kadhi’s Court Misc. Succession Cause No. E010 of 2026, is hereby recognized and substituted in place of the deceased 17th Defendant, Nurdin Akasha Abdalla, for the limited purpose of representing his estate in all post-judgment proceedings arising in this Court and for facilitation of any lawful appellate process.
iii. For avoidance of doubt, the substitution in Order (ii) above shall not operate to reopen the hearing, set aside, vary, review, or otherwise disturb the judgment delivered on 19th June 2026, and any challenge to that judgment shall lie only through the procedures recognized by law.
iv. The Applicant shall within seven (7) days file and serve upon all parties a formal notice reflecting the substitution ordered herein and shall thereafter be entitled to receive service of all post-judgment applications, notices and orders affecting the estate of the deceased 17th Defendant.
v. Costs of the application shall be in the cause.
40. Orders accordingly.
RULING DATED, SIGNED AND DELIVERED AT MOMBASA THIS 10th DAY OF JULY 2026.
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B. A. AKELLO, OGW
JUDGE