REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC NO. 27B OF 2019
SAMUEL MUTHIANI MUSILU…………………………..1 ST APPELLANT
DANIEL MWENDWA MUSILI.......................................... 2 ND APPELLANT
-VERSUS-
DR. ANDREW MULLEI ………………………………....1 ST RESPONDENT
COUNTY COUNCIL OF MAKUENI.............................. 2 ND RESPONDENT
(Being an appeal from the ruling of Hon. H. E. Keago SPM delivered on 12 th June, 2019 in Machakos CMCC No. 176 of 2007)
JUDGMENT
Background
1. The Appellants are the administrators of the Estate of the late Raymond Musilu Kalovya who died on 4 th December, 2008 (deceased). The deceased had been named as the second Defendant in Machakos CMCC No. 176 of 2007 which was filed on 1 st March, 2007 by the first Respondent. The deceased passed away in the course of the proceedings. As the suit against the deceased had abated, the first Respondent’s lawyer indicated that the first Respondent was only proceeding as against the first Defendant. The case proceeded and a judgment was delivered on 3 rd July, 2012.
2. By an amended notice of motion dated 20 th February, 2019, the Appellants sought the following reliefs:
1) That this application be certified urgent and heard exparte in the first instance.
2) That this honourable court be pleased to grant an order of stay of execution of the judgment delivered herein on 3 rd July, 2012 as well as the decree and all consequential orders thereto pending the hearing and determination of the application herein.
3) That this honourable court be pleased to revive the suit against the 2 nd Defendant which abated on 5 th December, 2009.
That the Applicants herein be enjoined in these proceedings as Defendants in the place of the 2 nd Defendant who is now deceased.
4) That this honourable court be pleased to set aside the judgment entered on 3 rd July, 2012 and all consequential orders and that this matter be heard de novo on its merits.
5) That the costs of this application be provided for.
3. In a ruling delivered on 12 th June, 2019, the trial magistrate dismissed the Appellants’ application with costs. This is what triggered the filing of this appeal in which the Appellants raise the following grounds:
1. That the learned trial magistrate erred in fact and in law by failing to give concise statement of the case, points of determination, decision thereon and reasons for his ruling.
2. That the learned trial magistrate erred in law and in fact in failing to consider Appellants submissions and pleadings thereby ignoring relevant guiding facts to enable him reach a fair and reasoned determination in his ruling.
3. That the learned trial magistrate erred in fact and in law by failing to consider that the suit subject of this appeal was res judicata and therefore there was no valid order to be executed since the matters in this matter had already been determined in a similar matter.
4. That the learned trial magistrate erred in law and in facts by stating that the counsel who filed the application dated 20 th February, 2019 subject of appeal was the same counsel who represented the 2 nd Defendant while the records are clear that the 2 nd Defendant was acting in person thereby making wrong determination in his ruling.
5. That the trial magistrate erred in law and fact by failing to appreciate the spirit behind the provisions of Article 159 of Constitution and proceeded to base his ruling on procedural technicalities in dismissing Appellants application hence occasioning more injustices to the parties herein by ignoring their entitlement to defend the suit.
4. The parties were directed to file written submissions. The Appellants filed their submissions dated 3 rd February, 2026. The first Respondent filed his submissions dated 11 th September, 2025.
Appellants’ Submissions
5. The Appellants submitted that the trial magistrate did not understand the effect of abatement of a suit. They submitted that the trial magistrate failed to notice that as the suit against the deceased had abated, the magistrate who delivered judgment in Machakos CMCC No. 176 of 2007 was wrong in proceeding to deliver a judgment. They submit that the judgment of 3 rd July, 2012 was a nullity. Reliance was palced on the case of Kenya Farmers Co-operative Union Limited –vs- Charles Murgor (deceased) T/A Kaptabei Coffee Estate 2005 where it was held as follows:
“If a suit has abated it has ceased to exist. There is no suit upon which a trial can be conducted and judgment pronounced. Purporting to hear and determine a suit that has abated is really an exercise in futility. It is a grave error on the face of the record”.
6. The Appellant also submitted that the trial magistrate failed to find that the Machakos CMCC No. 176 OF 2007 was res judicata. It was submitted that the issues in Machakos CMCC No. 176 of 2007 had been determined previously in Machakos SRMCC No. 56 of 1982. Reliance was placed on case of Uhuru High Way Development Limited –vs- Central Bank of Kenya & 20 Others (1966) KECA 102 (KLR) where it was held as follows;
“In order to rely on the defence of res judicata there must be:
i. A previous suit in which the matter was in issue;
ii. The parties were the same or litigating under the same title;
iii. A competent court heard the matter in issue.
iv. The issue has been raised once again in a fresh suit”.
7. Finally it was submitted that the trial magistrate was wrong in failing to set aside the judgment of 3 rd July, 2012. Reliance was placed on the case of James Kaniita Nderitu & Another –vs- Marios Philoter Chikas & Another (2016) KECA 470 (KLR) where it was held das follows:
“....such a Defendant is entitled, under Order 10 Rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court had unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the Defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues”.
First Respondent’s Submissions
8. The first Respondent submitted that the trial magistrate did not err in not granting an order of stay of execution. There was nothing to say as the register had been rectified in accordance with the judgment of 3 rd July, 2012.
9. On the issue of revival of the suit, the first Respondent submitted that the trial magistrate considered the fact that there was no reasonable explanation given as to why an application for substitution could not be made within one year. It was submitted that the deceased’s counsel informed the court that he had no instructions on substitution and asked the court to mark the suit as having abated. It was submitted that the Appellants are the ones who did not give instructions for substitution. The application for revival had been made after 10 years.
10. On the issue of res judicata, it was submitted that Machakos SRMCC No. 56 of 1982 was never heard on merits and it abated and was marked so by the court. The issue of res judicata was raised by the deceased and was dismissed. Finally it was submitted that the Appellants never filed any submissions and therefore the Appellants are wrongly blaming the trial magistrate. It was further submitted that Article 159 cannot be invoked to cure what the Appellants omitted to do.
Analysis and Determination
1. I have carefully considered the Appellants’ submissions as well as he submissions by the first Respondent. I have also considered the grounds of appeal. I am cognizant of the duty of the first appellate as set out in the case of Selle and Another –vs- Associated Motor Boat Co. Ltd & Others (1968) EA 123 as follows:
“.....An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either it has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence of if the impression based on the demeanor of a witness is inconsistent with the evidence in the cases generally”.
11. The issues which emerges for determination are firstly, whether the trial magistrate was wrong in not granting an order for revival of the suit. Secondly, whether the trial magistrate properly analyzed the application which was before him.
Whether the trial magistrate was wrong in not granting an order for revival of the suit
12. The deceased died on 4 th August, 2008. The application for revival of the suit was made on 17 th December, 2018 and amended on 20 th February, 2019. Order 24 Rule 7(2) of the Civil Procedure Rules provides as follows:
1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. The plaintiff or the person claiming to be the legal representative of a deceased
2) plaintiff or the trustee or official receiver in the case of a bankrupt plaintiff may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit.
13. The trial magistrate in his ruling stated that the Appellants had not offered any reasons to show why they could not substitute the deceased. He observed that the counsel who filed the application for revival of the suit is the same as the one who represented the deceased. Order 24 Rule 7(2) clearly states that a suit can be revived if the Applicant proves that he was prevented by any sufficient cause from continuing the suit.
14. The record shows that the firm which represented the deceased is O. N. Makau & Mulei Advocates. This is the same firm which filed the application the subject of this appeal. The trial magistrate observed so in his ruling. It is misleading for the Appellants to claim in ground 4 of the appeal that the deceased was appearing in person. The record shows that on 12 th June, 2012 when the suit was heard, Mr. Kimeu was appearing for the deceased. He made an application to court to mark the case against the deceased as having abated. This is because he had no instructions. The deceased having died on 4 th August, 2008 the Appellants could not be heard to claim that they were not aware of the suit which had been filed against the deceased. There was therefore no good reason given which could show that they were prevented from applying for revival of the suit.
Whether the trial magistrate properly analyzed the application which was before him
15. The Appellants in ground 1 and 2 blame the trial magistrate for failure to consider their submissions and pleadings. The ruling of the trial magistrate clearly shows that the Appellants did not file submissions. He stated in the ruling that he was going to rely on their application and supporting affidavit. The trial magistrate analyzed the submissions by the 1 st Respondent, set out the issues for determination and went on to analyze the same, reached a finding supported by the reasons for the finding. It is therefore clear that grounds 1 and 2 of the memorandum of appeal are baseless and they accordingly fail.
16. The trial magistrate having found that the suit against the deceased could not be revived, the other prayers in the application lay by the wayside. What was sought to be stayed had already happened. The prayer for joinder of the Appellants was untenable owing to the finding of the trial magistrate that the suit against the deceased could not be revived. Equally, the judgment could not be set aside for the same reason.
17. The application before the trial magistrate did not ask him to make a finding that Machakos CMCC No. 176 of 2007 was res judicata. Though submissions were made on the issue before the trial magistrate as in this appeal, the trial magistrate did not deal with it and rightly so. Accordingly ground 3 of the memorandum of appeal fails.
18. There was nothing before the trial magistrate which would have prompted the magistrate to invoke the provisions of Article 159 of the Constitution. Failure to apply for revival of a suit is not a technicality which can be cured by Article 159 of the Constitution. Accordingly ground 5 fails.
Disposition
19. It is patently clear that the Appellants’ appeal is devoid of merit. The same is dismissed with costs to the first Respondent.
.....................................
HON. E. O. OBAGA, FCIArb
JUDGE
JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 17 TH DAY OF SEPTEMBER, 2026.
IN THE PRESENCE OF:
Mr. Wabende for Appellants
Mr. Mutinda for Respondents.
Court assistants – Kilonzo and Musyoki
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC NO. 27B OF 2019
SAMUEL MUTHIANI MUSILU…………………………..1 ST APPELLANT
DANIEL MWENDWA MUSILI.......................................... 2 ND APPELLANT
-VERSUS-
DR. ANDREW MULLEI ………………………………....1 ST RESPONDENT
COUNTY COUNCIL OF MAKUENI.............................. 2 ND RESPONDENT
(Being an appeal from the ruling of Hon. H. E. Keago SPM delivered on 12 th June, 2019 in Machakos CMCC No. 176 of 2007)
JUDGMENT
Background
1. The Appellants are the administrators of the Estate of the late Raymond Musilu Kalovya who died on 4 th December, 2008 (deceased). The deceased had been named as the second Defendant in Machakos CMCC No. 176 of 2007 which was filed on 1 st March, 2007 by the first Respondent. The deceased passed away in the course of the proceedings. As the suit against the deceased had abated, the first Respondent’s lawyer indicated that the first Respondent was only proceeding as against the first Defendant. The case proceeded and a judgment was delivered on 3 rd July, 2012.
2. By an amended notice of motion dated 20 th February, 2019, the Appellants sought the following reliefs:
1) That this application be certified urgent and heard exparte in the first instance.
2) That this honourable court be pleased to grant an order of stay of execution of the judgment delivered herein on 3 rd July, 2012 as well as the decree and all consequential orders thereto pending the hearing and determination of the application herein.
3) That this honourable court be pleased to revive the suit against the 2 nd Defendant which abated on 5 th December, 2009.
That the Applicants herein be enjoined in these proceedings as Defendants in the place of the 2 nd Defendant who is now deceased.
4) That this honourable court be pleased to set aside the judgment entered on 3 rd July, 2012 and all consequential orders and that this matter be heard de novo on its merits.
5) That the costs of this application be provided for.
3. In a ruling delivered on 12 th June, 2019, the trial magistrate dismissed the Appellants’ application with costs. This is what triggered the filing of this appeal in which the Appellants raise the following grounds:
1. That the learned trial magistrate erred in fact and in law by failing to give concise statement of the case, points of determination, decision thereon and reasons for his ruling.
2. That the learned trial magistrate erred in law and in fact in failing to consider Appellants submissions and pleadings thereby ignoring relevant guiding facts to enable him reach a fair and reasoned determination in his ruling.
3. That the learned trial magistrate erred in fact and in law by failing to consider that the suit subject of this appeal was res judicata and therefore there was no valid order to be executed since the matters in this matter had already been determined in a similar matter.
4. That the learned trial magistrate erred in law and in facts by stating that the counsel who filed the application dated 20 th February, 2019 subject of appeal was the same counsel who represented the 2 nd Defendant while the records are clear that the 2 nd Defendant was acting in person thereby making wrong determination in his ruling.
5. That the trial magistrate erred in law and fact by failing to appreciate the spirit behind the provisions of Article 159 of Constitution and proceeded to base his ruling on procedural technicalities in dismissing Appellants application hence occasioning more injustices to the parties herein by ignoring their entitlement to defend the suit.
4. The parties were directed to file written submissions. The Appellants filed their submissions dated 3 rd February, 2026. The first Respondent filed his submissions dated 11 th September, 2025.
Appellants’ Submissions
5. The Appellants submitted that the trial magistrate did not understand the effect of abatement of a suit. They submitted that the trial magistrate failed to notice that as the suit against the deceased had abated, the magistrate who delivered judgment in Machakos CMCC No. 176 of 2007 was wrong in proceeding to deliver a judgment. They submit that the judgment of 3 rd July, 2012 was a nullity. Reliance was palced on the case of Kenya Farmers Co-operative Union Limited –vs- Charles Murgor (deceased) T/A Kaptabei Coffee Estate 2005 where it was held as follows:
“If a suit has abated it has ceased to exist. There is no suit upon which a trial can be conducted and judgment pronounced. Purporting to hear and determine a suit that has abated is really an exercise in futility. It is a grave error on the face of the record”.
6. The Appellant also submitted that the trial magistrate failed to find that the Machakos CMCC No. 176 OF 2007 was res judicata. It was submitted that the issues in Machakos CMCC No. 176 of 2007 had been determined previously in Machakos SRMCC No. 56 of 1982. Reliance was placed on case of Uhuru High Way Development Limited –vs- Central Bank of Kenya & 20 Others (1966) KECA 102 (KLR) where it was held as follows;
“In order to rely on the defence of res judicata there must be:
i. A previous suit in which the matter was in issue;
ii. The parties were the same or litigating under the same title;
iii. A competent court heard the matter in issue.
iv. The issue has been raised once again in a fresh suit”.
7. Finally it was submitted that the trial magistrate was wrong in failing to set aside the judgment of 3 rd July, 2012. Reliance was placed on the case of James Kaniita Nderitu & Another –vs- Marios Philoter Chikas & Another (2016) KECA 470 (KLR) where it was held das follows:
“....such a Defendant is entitled, under Order 10 Rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court had unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the Defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues”.
First Respondent’s Submissions
8. The first Respondent submitted that the trial magistrate did not err in not granting an order of stay of execution. There was nothing to say as the register had been rectified in accordance with the judgment of 3 rd July, 2012.
9. On the issue of revival of the suit, the first Respondent submitted that the trial magistrate considered the fact that there was no reasonable explanation given as to why an application for substitution could not be made within one year. It was submitted that the deceased’s counsel informed the court that he had no instructions on substitution and asked the court to mark the suit as having abated. It was submitted that the Appellants are the ones who did not give instructions for substitution. The application for revival had been made after 10 years.
10. On the issue of res judicata, it was submitted that Machakos SRMCC No. 56 of 1982 was never heard on merits and it abated and was marked so by the court. The issue of res judicata was raised by the deceased and was dismissed. Finally it was submitted that the Appellants never filed any submissions and therefore the Appellants are wrongly blaming the trial magistrate. It was further submitted that Article 159 cannot be invoked to cure what the Appellants omitted to do.
Analysis and Determination
1. I have carefully considered the Appellants’ submissions as well as he submissions by the first Respondent. I have also considered the grounds of appeal. I am cognizant of the duty of the first appellate as set out in the case of Selle and Another –vs- Associated Motor Boat Co. Ltd & Others (1968) EA 123 as follows:
“.....An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either it has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence of if the impression based on the demeanor of a witness is inconsistent with the evidence in the cases generally”.
11. The issues which emerges for determination are firstly, whether the trial magistrate was wrong in not granting an order for revival of the suit. Secondly, whether the trial magistrate properly analyzed the application which was before him.
Whether the trial magistrate was wrong in not granting an order for revival of the suit
12. The deceased died on 4 th August, 2008. The application for revival of the suit was made on 17 th December, 2018 and amended on 20 th February, 2019. Order 24 Rule 7(2) of the Civil Procedure Rules provides as follows:
1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. The plaintiff or the person claiming to be the legal representative of a deceased
2) plaintiff or the trustee or official receiver in the case of a bankrupt plaintiff may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit.
13. The trial magistrate in his ruling stated that the Appellants had not offered any reasons to show why they could not substitute the deceased. He observed that the counsel who filed the application for revival of the suit is the same as the one who represented the deceased. Order 24 Rule 7(2) clearly states that a suit can be revived if the Applicant proves that he was prevented by any sufficient cause from continuing the suit.
14. The record shows that the firm which represented the deceased is O. N. Makau & Mulei Advocates. This is the same firm which filed the application the subject of this appeal. The trial magistrate observed so in his ruling. It is misleading for the Appellants to claim in ground 4 of the appeal that the deceased was appearing in person. The record shows that on 12 th June, 2012 when the suit was heard, Mr. Kimeu was appearing for the deceased. He made an application to court to mark the case against the deceased as having abated. This is because he had no instructions. The deceased having died on 4 th August, 2008 the Appellants could not be heard to claim that they were not aware of the suit which had been filed against the deceased. There was therefore no good reason given which could show that they were prevented from applying for revival of the suit.
Whether the trial magistrate properly analyzed the application which was before him
15. The Appellants in ground 1 and 2 blame the trial magistrate for failure to consider their submissions and pleadings. The ruling of the trial magistrate clearly shows that the Appellants did not file submissions. He stated in the ruling that he was going to rely on their application and supporting affidavit. The trial magistrate analyzed the submissions by the 1 st Respondent, set out the issues for determination and went on to analyze the same, reached a finding supported by the reasons for the finding. It is therefore clear that grounds 1 and 2 of the memorandum of appeal are baseless and they accordingly fail.
16. The trial magistrate having found that the suit against the deceased could not be revived, the other prayers in the application lay by the wayside. What was sought to be stayed had already happened. The prayer for joinder of the Appellants was untenable owing to the finding of the trial magistrate that the suit against the deceased could not be revived. Equally, the judgment could not be set aside for the same reason.
17. The application before the trial magistrate did not ask him to make a finding that Machakos CMCC No. 176 of 2007 was res judicata. Though submissions were made on the issue before the trial magistrate as in this appeal, the trial magistrate did not deal with it and rightly so. Accordingly ground 3 of the memorandum of appeal fails.
18. There was nothing before the trial magistrate which would have prompted the magistrate to invoke the provisions of Article 159 of the Constitution. Failure to apply for revival of a suit is not a technicality which can be cured by Article 159 of the Constitution. Accordingly ground 5 fails.
Disposition
19. It is patently clear that the Appellants’ appeal is devoid of merit. The same is dismissed with costs to the first Respondent.
.....................................
HON. E. O. OBAGA, FCIArb
JUDGE
JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 17 TH DAY OF SEPTEMBER, 2026.
IN THE PRESENCE OF:
Mr. Wabende for Appellants
Mr. Mutinda for Respondents.
Court assistants – Kilonzo and Musyoki