The Applicant, Githumbu Njeru, has moved this court by way of a Notice of Motion dated 9th April 2025 seeking the following orders:
a) That the suit which has abated against the deceased 1st Defendant be revived.
b) That time be extended for substitution of the deceased 1st Defendant.
c) That the deceased 1st Defendant be substituted with Joshua Njeru Ireri, the holder of a Limited Grant of Letters of Administration Ad Litem issued on 28th February 2025 in Embu Chief Magistrate's Court Miscellaneous Succession Cause No. E021 of 2025.
d) That the costs of this application be provided for.
e) The application is supported by the affidavit of the Applicant sworn on 15th July 2025, together with annexures including the Limited Grant Ad Litem, references to the death certificate of the deceased, the judgment of this court dated 9th July 2020, and the order dated 11th May 2021.
The brief facts as gleaned from the record are as follows: The Plaintiff commenced this suit by way of an Originating Summons in 2015 seeking declarations on adverse possession over Land Parcel No. Nthawa/Siakago/1683 against the original Respondent, initially recorded as Nyaga Muthangato but subsequently treated as Ireri Muthangato. The suit proceeded ex parte as the Respondent failed to enter appearance or file a response. Judgment was delivered on 9th July 2020 by Hon. Y.M. Angima, J., declaring the Plaintiff entitled to be registered as proprietor of the suit land in place of the Respondent, with the Respondent's rights extinguished under the Limitation of Actions Act (Cap. 22). A further order dated 11th May 2021 authorized the Deputy Registrar to execute necessary documents and dispensed with the production of the original title.
It has emerged that the 1st Defendant, Ireri Muthangato, passed away on 20th April 2020, prior to the delivery of judgment. No application for substitution was made within one year of his death, resulting in the suit abating against him by operation of law pursuant to Order 24 Rule 4(3) of the Civil Procedure Rules, 2010.
The Applicant avers that he is the registered proprietor of the suit land, having acquired title on 18th December 2014, prior to the institution of the suit. He states that he was not joined as a party, only becoming aware of the proceedings in 2022 upon being summoned by the Land Registrar, Mbeere, to surrender titles derived from subdivisions of the suit parcel pursuant to the order of 11th May 2021. The Applicant thereafter filed an application dated 15th February 2022 seeking to stay execution and set aside the judgment, contending that the same was irregular, obtained post the death of the Defendant without substitution or disclosure, and violative of the principles of natural justice as it adversely affects his proprietary interests.
The Plaintiff opposes the application through submissions dated October 2025, relying on Order 24 Rule 4(3) of the Civil Procedure Rules and the decision in Kenya Farmers Co-operative Union Ltd v Charles Murgor (Deceased) t/a Kiptabei Coffee Estate [2005] eKLR. It is submitted that the suit abated automatically one year after the Defendant's death (around April 2021), and the court lacks jurisdiction to revive or substitute in an abated suit. Further, no sufficient cause has been demonstrated for the delay, rendering any post-abatement proceedings, including the judgment, null and void.
The issues for determination arising from the application and opposition are:
a) Whether the suit abated and, if so, whether this court has jurisdiction to revive it and extend time for substitution.
b) Whether sufficient cause has been shown to warrant revival and extension of time.
c) What orders are appropriate in the circumstances, including as to costs.
d) On the first issue, Order 24 Rule 4(3) of the Civil Procedure Rules provides that where no application is made within one year of the death of a defendant for substitution by his legal representative, the suit shall abate as against the deceased defendant. Revival is contemplated under Order 24 Rule 8, typically at the instance of the plaintiff, upon demonstration of sufficient cause for failure to proceed with the suit. In Kenya Farmers Co-operative Union Ltd v Charles Murgor (supra), Waweru J. held that substitution after abatement is a nullity, and any subsequent proceedings or judgment on an abated suit are void for lack of jurisdiction.
In the instant case, the suit abated around April 2021. Judgment was delivered post-death without substitution or disclosure of the demise, rendering it and the consequential order of 11th May 2021 irregular and susceptible to being set aside as nullities on the face of the record. However, this court is guided by its inherent jurisdiction under Section 3A of the Civil Procedure Act (Cap. 21) and Article 159(2) of the Constitution of Kenya, 2010, to do substantial justice, prevent abuse of process, and uphold the rules of natural justice, including the audi alteram partem rule. Strict adherence to procedural technicalities must yield where injustice would otherwise ensue, as enunciated in Macharia v Wambugu [1983-1987] KLR 1 and Mwangi v Kenya Airways Ltd [2003] KLR 486. The Applicant, though not the plaintiff, is an affected third party whose registered title stands threatened by execution of the decree.
Turning to the second issue, the Applicant depones that he only learned of the suit and the Defendant's death in 2022, promptly filed his application to set aside in February 2022, and thereafter pursued the death certificate and convinced the family to obtain the Limited Grant Ad Litem despite initial reluctance. The Grant was issued on 28th February 2025, limited to proceedings in this suit. The explanation for the delay is reasonable and uncontroverted. The cause of action survives as a challenge to the validity of the judgment and decree. Joshua Njeru Ireri is confirmed as the proper legal representative via the annexed Grant.
Having considered the material before me, the submissions, and the applicable law, I am satisfied that sufficient cause exists to exercise discretion in favour of revival and substitution. The judgment and orders were procured irregularly without disclosure of the Defendant's death, potentially amounting to a miscarriage of justice. The Applicant, as the registered owner, has locus standi and risks irreparable prejudice if denied an opportunity to be heard on his pending application to set aside. Refusal would perpetuate injustice contrary to Article 159(2)(d) and (e) of the Constitution.
The upshot of the foregoing is that the application succeeds. Consequently, I make the following orders:
a. The suit that abated against the deceased 1st Defendant, Ireri Muthangato, is hereby revived.
b. Time for substitution of the deceased 1st Defendant is extended to the date of this ruling.
c. The deceased 1st Defendant is hereby substituted with Joshua Njeru Ireri as the Legal Representative of the Estate of Ireri Muthangato (Deceased), pursuant to the Limited Grant of Letters of Administration Ad Litem dated 28th February 2025.
d. The Applicant is at liberty to prosecute his application dated 15th February 2022 seeking to set aside the judgment dated 9th July 2020 and the order dated 11th May 2021.
e. Costs of this application shall abide the outcome of the substantive application to set aside.
Orders accordingly. Mention for directions on the application dated 15th February 2022 on 17th February 2026.
DATED, SIGNED AND DELIVERED AT EMBU THIS 05th DAY OF FEBRUARY, 2026.
E. C. CHERONO
JUDGE
In the presence of:
Beth Ndorongo for the Applicant
Plaintiff/Advocate-absent
Court Assistant: Diana Kemboi
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