RULING
1. The 1 st , 2 nd and 3 rd Defendants (hereinafter referred to as “the 1 st to 3 rd Applicants” ) did file a Notice of Motion Application dated 03.02.2026 (hereinafter referred to as “the present Application” ) against the Plaintiff (hereinafter referred to as “the Respondent” ) seeking the following Orders; -
A. THAT THIS APPLICATION BE CERTIFIED URGENT AND SERVICE BE DISPENSED WITH IN THE FIRST INSTANCE.
B. THAT THE FIRM OF OYARO J & ASSOCIATES, ADVOCATES BE ALLOWED TO COME ON RECORD ON BEHALF OF THE 1 ST DEFENDANT AFTER JUDGEMENT.
C. THAT THIS HONOURABLE COURT BE PLEASED TO ISSUE AN ORDER OF STAY OF ANY FURTHER EXECUTION OF THE ORDERS ISSUED ON THE 20.12.2024.
D. THAT THIS HONOURABLE COURT BE PLEASED TO DECLARE THE PLAINTIFF’S SUIT AS HAVING ABATED FOR FAILURE TO PROPERLY SUBSTITUTE THE PLAINTIFF WITHIN ONE YEAR AFTER HIS DEMISE AND FOR FAILING TO AMEND THE PLEADINGS TO INCLUDE A REPRESENTATIVE OF THE ESTATE OF THE DECEASED.
E. THAT THIS HONOURABLE COURT BE PLEASED TO SET ASIDE THE ORDERS ISSUED ON 20 TH DECEMBER, 2024.
F. THAT UPON GRANT OF PRAYER (4), THIS HONORABLE COURT BE PLEASED TO ISSUE ORDERS RESTORING THE STATUS QUO ANTE.
G. THAT THE OFFICER COMMANDING STATION, LANGAS POLICE STATION TO SUPERVISE AND ENSURE COMPLIANCE OF THE ORDERS ISSUED BY THIS COURT.
H. THAT COSTS HEREIN BE BORNE BY THE ESTATE OF THE RESPONDENT.
2. The facts pleaded in support of the prayers above are contained in the body of the present application as well as the Supporting Affidavit sworn on the 23.02.2026 and can be summarized as follows; -
i) The Plaintiff herein upon institution of this proceeding in the year 2017 did pass away on 10.12.2020.
ii) Upon the demise of the Plaintiff, the estate did not make any efforts to substitute her name with that of a legal representative until 16.06.2022 when an application for substitution was made.
iii) The 1 st to 3 rd Applicants did allege that the actions by the Court to entertain the Application dated 16.06.2022 and thereafter allowing the same was erroneous and amounts to an irregularity upon its determination in favour of the Applicant one JOAN CHEPKORIR.
iv) The 1 st to 3 rd Applicants further did plead that even after the erroneous and irregular substitution of JOAN CHEPKORIR, the pleadings before the Court were never amended to reflect the actual parties and Judgement and Decree issued by this Court and pronounced on the 29.05.2019 were erroneous and irregular.
v) The 1 st to 3 rd Applicants did state that the person known as JOAN CHEPKORIR ownership rights relate to a distinct and separate property different from the suit property in this matter and the actions of the said person known as JOAN CHEPKORIR of enforcing the Judgment and Decree issued in this suit was in bad faith and an illegality.
vi) In essence, the 1 st to 3 rd Applicants did seek this Court to grant the prayers sought in the present Application as the same were merited.
3. The present application was duly served on the Respondent herein who did oppose the same through a Replying Affidavit dated 16.03.2026.
4. The Respondent herein did plead the following facts in response to the present application; -
i) The Respondent did confirm that this Court did allow a substitution of the Plaintiff with the Respondent on the 20.04.2023.
ii) So far, the 1 st to 3 rd Applicants herein had never either sought for a review, set-aside and/or appealed against the Ruling pronounced by this Court on the 20.04.2023 allowing the substitution.
iii) The 1 st to 3 rd Applicants herein were fully aware of the application for substitution before the Court made on the 16.06.2022 in which they did participate during its prosecution and determination.
iv) The Respondent did further plead that at the time the Court was determining the issue of substitution, the Court was satisfied that the suit before it was still alive and had not abated as alleged by the 1 st to 3 rd Applicants.
v) Consequently, the present application seeking for a declaration that the suit had abated on the 20.04.2023 when the decision for substitution was made is unwarranted as the Court will be sitting on appeal of its own ruling.
vi) The Respondent did state that the execution of the Orders issued in this Court pertaining the issues in dispute had already been concluded and therefore the Court was actually functus officio and incapable of entertaining the present Application.
vii) In conclusion, the Respondent did pray that the present application be dismissed forthwith with costs.
5. The Replying Affidavit dated 16.03.2026 was duly served on the 1 st to 3 rd Applicants.
6. The 1 st to 3 rd Applicants did file a Further Affidavit which was undated based on the following facts;-
i) The 1 st to 3 rd Applicants did reiterate the contents of the supporting affidavit filed in support of the present application.
ii) The 1 st to 3 rd Applicants did state that at the time the Respondent was filing the application for substitution dated 16.06.2022, the suit had already abated on the 10.12.2021.
iii) The 1 st to 3 rd Applicants did plead therefore that the Court did not have proper jurisdiction to hear and determine the Application for substitution dated 16.06.2022 and grant the Orders for substitution dated 20.04.2023.
iv) The 1 st to 3 rd Applicants further did aver that the Ruling pronounced on the 20.04.2023 allowing the substitution of the Plaintiff herein could not revive the suit which had already abated by operation of law.
v) The 1 st to 3 rd Applicants did further plead that the failure to remove the name of the Plaintiff and replace the same with that of JOAN CHEPKORIR was a fundamental omission which made all the proceedings thereafter null and void.
vi) The 1 st to 3 rd Applicants therefore were of the view that the person known as JOAN CHEPKORIR was a stranger in the present suit and not capable of either sustaining any litigation and/or executing any Decree arising out of the proceedings herein.
vii) Further to the foregoing, the 1 st to 3 rd Applicants did state that the claim by JOAN CHEPKORIR was on a different and distinct parcel of land and not the one in dispute in this matter.
viii) In conclusion, the 1 st to 3 rd Applicants did plead that indeed they have all the rights to file the present Application in the interest of justice.
7. The Court did direct that the present Application would be canvassed by way of written submissions.
8. The 1 st to 3 rd Applicants did duly file their written submissions in support of the present application dated 23.04.2026 while the Respondent herein did file her submissions dated 20.05.2026 in opposition to the same.
9. The Court has carefully perused the present Application, the Replying Affidavit thereof, the Further Affidavit and the submissions by both parties and identifies the issues for determination as follows; -
ISSUE NO.1- WHEN DID THE ORIGINAL PLAINTIFF IN THIS MATTER PASS AWAY?
ISSUE NO.2- WHAT WAS THE STATUS OF THIS MATTER AT THE DEMISE OF THE ORIGINAL PLAINTIFF?
ISSUE NO.3- HAD THIS MATTER ABATED BY THE TIME THE APPLICATION FOR SUBSTITUTION WAS FILED?
ISSUE NO.4- DID THE COURT HAVE JURISDICTION TO HEAR AND DETERMINE THE APPLICATION FOR SUBSTITUTION?
ISSUE NO.5- IS THERE ANY VALID GROUNDS FOR THIS COURT TO REVIEW AND/OR SET-ASIDE THE RULING ALLOWING SUBSTITUTION OF THE ORIGINAL PLAINTIFF?
ISSUE NO.6- IS THERE A LAWFUL REASON WHY THE ORDERS OF THIS COURT MADE ON THE 20.12.2024 SHOULD BE STAYED AND/OR SET-ASIDE AS SOUGHT BY THE APPLICANTS?
ISSUE NO.7- IS THE PRESENT APPLICATION MERITED OR NOT?
ISSUE NO.8- WHO BEARS THE COSTS OF THE PRESENT APPLICATION?
10. The Court having duly identified the above-mentioned issues for determination, the same will now be discussed as provided below.
ISSUE NO.1- WHEN DID THE ORIGINAL PLAINTIFF IN THIS MATTER PASS AWAY?
11. The first issue for determination is to establish when the present suit was filed and when the original Plaintiff did pass away.
12. A perusal of the Court file shows that the present suit was filed on the 19.04.2017 against the 1 st to 3 rd Applicants herein.
13. According to the Death Certificate produced by the 1 st to 3 rd Applicants herein dated 11.02.2021 in relation to the original Plaintiff, it shows that she did pass away on the 10.12.2020.
14. This Court therefore hereby makes a finding that the original Plaintiff in this matter did pass away on the 10.12.2020.
ISSUE NO.2- WHAT WAS THE STATUS OF THIS MATTER AT THE DEMISE OF THE ORIGINAL PLAINTIFF?
15. The second issue for determination is what was the status of these proceedings at the time the original Plaintiff did pass away.
16. According to the Court file herein, the Judgement relating to the Plaint dated 19.04.2017 was pronounced on the 29.05.2019 and a copy of the same is in the file.
17. In other words, it is clearly on record that at the time of the original Plaintiff’s death on the 10.12.2020, the hearing of the dispute between the parties therein had been concluded on merit.
ISSUE NO.3- HAD THIS MATTER ABATED BY THE TIME THE APPLICATION FOR SUBSTITUTION WAS FILED?
18. The third issue for determination is whether the Court did have jurisdiction to entertain the Application for substitution filed by one JOAN CHEPKORIR on the 16.06.2022 or not.
19. According to the 1 st to 3 rd Applicants, the Court did not have the jurisdiction and/or powers to entertain and/or make any determination on the Application dated 16.06.2022 as the main suit had abated on the 10.12.2021.
20. The Respondent on the other hand did plead that the suit before the Court was still alive and the Court did have the jurisdiction to entertain and determine the application dated 16.06.2022 for substitution of the original Plaintiff with JOAN CHEPKORIR.
21. The question of whether the Court had the jurisdiction to entertain and determine the application for substitution dated 16.06.2022 is a fundamental one.
22. According to the 1 st to 3 rd Applicants, upon the demise of the original Plaintiff, substitution was to be undertaken within twelve months from the date of the demise.
23. In essence, the 1 st to 3 rd Applicants were of the position that the original Plaintiff having passed away on 10.12.2020, then the twelve months’ period within which substitution is allowed in law ended on the 10.12.2021.
24. The 1 st to 3 rd Applicants did state after the 10.12.2021, the suit automatically abated and the Court had no jurisdiction to entertain and/or determine an application for substitution.
25. The issue of abatement is provided for under Order 24 of the Civil Procedure Rules, 2010.
26. The provision of Order 24 Rule 1 of the Civil Procedure Rules, 2010 states as follows; -
“(1) The death of a Plaintiff or Defendant shall not cause the suit to abate if the cause of action survives or continues”)
27. Under Order 24 Rule 3 (2) of the Civil Procedure Rules, 2010, the same provides as follows; -
“(2) where within one year no application is made under Sub Rule (1), the suit shall abate so far as the deceased Plaintiff is concerned, and, on the application of the Defendant, the Court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased Plaintiff”
28. To begin with, Order 24 of the Civil Procedure Rules, 2010 is primarily anchored on the position that the proceedings before the Court are still on going at the time of the demise of either the Plaintiff and/or the Defendant.
29. The provision of Order 24 Rule 7 (1) and (2) of the Civil Procedure Rules, 2010 specifically states as follows;
“(1) where the suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of the deceased 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 on 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 the dismissal upon such terms as to costs or otherwise as it thinks fit”
30. The significant word which this Court takes judicial notice of are “any sufficient cause from continuing the suit” demonstrate that the provisions contained in Order 24 of the Civil Procedure Rules, 2010 relate to proceedings that are still pending determination by way of a judgement and either of the parties therein passes away.
31. The provisions of Order 24 of the Civil Procedure Rules, 2010 and in particular Order 24 Rule 3(2) of the Rules does not relate to matters that a judgement has already been pronounced by the time a party passes away.
32. A suit that has already been heard on merit and a Judgement pronounced in determination of the issues between the parties cannot abate after one year because there is nothing for the Court to determine between the parties therein.
33. In other words, at the time the application for substitution was filed on 16.06.2022, the suit herein had already been determined on the 29.05.2019 through a Judgement which was alive and binding on the parties unless otherwise ordered by a Court of competent jurisdiction.
ISSUE NO.4- DID THE COURT HAVE JURISDICTION TO HEAR AND DETERMINE THE APPLICATION FOR SUBSTITUTION?
34. The fourth issue is whether or not the Court had the jurisdiction to entertain and determine the application for substitution dated 16.06.2022?
35. The 1 st to 3 rd Applicants did plead that the Court did err in entertaining and making a determination in the application dated 16.06.2022 seeking the substitution of the original Plaintiff.
36. As already stated in Issue No.3, the suit between the original Plaintiff and the 1 st to 3 rd Applicants did not abate after the demise of the original owner.
37. The Judgement and Decree of this Court issued on the 29.05.2019 did survive the demise of the original Plaintiff herein.
38. The only challenge was that the party who was to execute the Judgement and Decree of this Court pronounced on the 29.05.2019 had passed away.
39. In the case of DHULLA HARICHAND-VERSUS- GULAM MOHU-UDIN & AZIZ DIN S/O GULAM MOHU-UDIN (1940) KLR Vol XIX at page 6 , the Court did observe as follows; -
“No doubt there is no express provision for substitution of the name of a representative of the deceased decree holder during the pendency of the execution proceedings but, as is apparent from a number of cases, such applications are filed and allowed, and the Courts have almost invariably treated such applications to be applications for continuation of the pending execution proceedings.
It has been held more than once that the Code is not exhaustive. It is clear from O.XXII R.12 read with Rules 3 and 4 that an execution of proceeding does not abate on the death of the decree holder.
If so, there is no bar to the execution continuing at the instance of his representative”
40. Clearly therefore, based on the above authority which this Court fully concurs with, this Court hereby makes a finding that indeed the Court had the jurisdiction to entertain and determine the Application dated 16.06.2022 seeking the substitution of the Plaintiff/ Decree Holder for purposes of execution of the Decree issued on the 29.05.2019.
ISSUE NO.5- ARE THERE ANY VALID GROUNDS FOR THIS COURT TO REVIEW AND/OR SET-ASIDE THE ORDERS ALLOWING SUBSTITUTION OF THE ORIGINAL PLAINTIFF?
41. The fifth issue is whether the 1 st to 3 rd Applicants did provide sufficient grounds for the Ruling pronounced by this Court on the 20.04.2023 regarding the substitution of the original Plaintiff with JOAN CHEPKORIR to be reviewed and/or set-aside.
42. The main ground upon which the 1 st to 3 rd Applicants have relied upon for seeking the Order for review and/or setting aside the Order made on 20.04.2023 and all subsequent proceedings thereafter is that the suit had abated on the 10.12.2021 and that the application for substitution was filed beyond the one-year period provided under Order 24 Rule 3 of the Civil Procedure Rules, 2010.
43. The two grounds pleaded by the 1 st to 3 rd Applicants have already been exhaustively discussed hereinabove and the Court had made two findings namely, that the suit herein did not abate on the 10.12.2021 as the same had already been concluded and secondly, the Court did have jurisdiction to hear and determine the application dated 16.06.2022 as it was to substitute the original Plaintiff with the legal administrator of the estate for purposes of completing the execution exercise.
44. The 1 st to 3 rd Plaintiffs did not plead any of the grounds provided under Order 45 Rule 1(b) of the Civil Procedure Rules, 2010 which are namely; the discovery of new and important facts or evidence, mistake or error apparent on the face of the record or any other sufficient reason thereof and/or proof of the same.
45. It is also significant to point out that even if the name of JOAN CHEPKORIR who was the person who substituted the original Plaintiff by virtue of the application dated 16.06.2022 and the Ruling made on 20.04.2023, the amendment of the pleadings in the concluded suit and/or proceedings was not necessary and could not in any way alter the outcome of the proceedings that had culminated in the Judgement pronounced on the 29.05.2019.
46. In the case of MUENI KIAMBA- VERSUS- MBITHI KIMEU KIMOLO (2017) eKLR, the Court did make the following finding; -
“I find there is wisdom in the above provision in that matters that have reached execution stage should be allowed to proceed without the need for substitution of deceased parties (emphasis mine).
This goes a long way in ensuring the overriding objective of the Civil Procedure Act and Rules namely the timely and expeditious determination of disputes between the parties.
Hence, it is my considered view that it is not mandatory to substitute the deceased decree holder at the execution stage and therefore the learned trial magistrate misapprehended the law when he ruled that the non-substitution of the decree holder was fatal to the suit.…”
47. In conclusion thereof, the Court hereby makes a finding that the substitution of the original Plaintiff with JOAN CHEPKORIR made on the 20.04.2023 was lawful, legal and in accordance to the law.
ISSUE NO.6- IS THERE A LAWFUL REASON WHY THE ORDERS OF THIS COURT MADE ON THE 20.12.2024 SHOULD BE STAYED AND/OR SET-ASIDE AS SOUGHT BY THE APPLICANTS?
48. The next issue is whether the 1 st to 3 rd Applicants are deserving of an Order of review and/or setting aside of the Orders made on the 20.12.2024.
49. The Orders issued on the 20.12.2024 were eviction Orders to be executed on the property known as LR.NO.ELDORET MUNICIPALITY BLOCK 12/288.
50. According to the 1 st to 3 rd Applicants’ own present application and in particular ground 11 of the reasons why the prayers should be granted, it is stated as follows;-
“11. THAT the said JOAN CHEPKORIR has forcefully taken possession and is in possession of the property belonging to the Applicants on the strength of the Orders issued by this Court on the 20.12.2024.”
51. Clearly, the 1 st to 3 rd Applicants have admitted that the Order issued on the 20.12.2024 was executed and the person known as JOAN CHEPKORIR is in occupation of the same.
52. This position was reconfirmed in the Replying Affidavit of the person known as JOAN CHEPKORIR who is representing the original Plaintiff or Decree Holder.
53. If the Orders issued on the 20.12.2024 have been implemented and/or executed as admitted by both the Applicants and the Respondent, then there is nothing for this Court to either stay and/or set-aside as sought by the 1 st to 3 rd Applicants.
ISSUE NO.7- IS THE PRESENT APPLICATION MERITED OR NOT?
54. Based on the finding in the Issues outlined hereinabove and in particular Issue No. 6, this Court is of the finding that the present application is not merited and the Orders sought therein cannot be granted.
ISSUE NO.8- WHO BEARS THE COSTS OF THE PRESENT APPLICATION?
55. On the issue of costs, this Court hereby awards the costs of the present Application in favour of the Respondent payable by the 1 st to 3 rd Applicants jointly and severally.
CONCLUSION
56. In conclusion, this Court hereby makes the following Orders in determination of the present application; -
A. THE NOTICE OF MOTION APPLICATION DATED 03.02.2026 IS NOT MERITED AND THEREFORE DISMISSED.
B. THE 1 ST TO 3 RD APPLICANTS ARE CONDEMNED TO PAY COSTS OF THE APPLICATION TO THE RESPONDENT HEREIN JOINTLY AND/OR SEVERALLY.
IN THE PRESENCE OF:
Court Assistant: Mr. Brian
Counsel for the 1 st to 3 rd Applicants: Mr. Yego
Counsel for the Respondent: Mr. Oyaro
ELC.176 OF 2017 RULING 17
1. The 1 st , 2 nd and 3 rd Defendants (hereinafter referred to as “the 1 st to 3 rd Applicants” ) did file a Notice of Motion Application dated 03.02.2026 (hereinafter referred to as “the present Application” ) against the Plaintiff (hereinafter referred to as “the Respondent” ) seeking the following Orders; -
A. THAT THIS APPLICATION BE CERTIFIED URGENT AND SERVICE BE DISPENSED WITH IN THE FIRST INSTANCE.
B. THAT THE FIRM OF OYARO J & ASSOCIATES, ADVOCATES BE ALLOWED TO COME ON RECORD ON BEHALF OF THE 1 ST DEFENDANT AFTER JUDGEMENT.
C. THAT THIS HONOURABLE COURT BE PLEASED TO ISSUE AN ORDER OF STAY OF ANY FURTHER EXECUTION OF THE ORDERS ISSUED ON THE 20.12.2024.
D. THAT THIS HONOURABLE COURT BE PLEASED TO DECLARE THE PLAINTIFF’S SUIT AS HAVING ABATED FOR FAILURE TO PROPERLY SUBSTITUTE THE PLAINTIFF WITHIN ONE YEAR AFTER HIS DEMISE AND FOR FAILING TO AMEND THE PLEADINGS TO INCLUDE A REPRESENTATIVE OF THE ESTATE OF THE DECEASED.
E. THAT THIS HONOURABLE COURT BE PLEASED TO SET ASIDE THE ORDERS ISSUED ON 20 TH DECEMBER, 2024.
F. THAT UPON GRANT OF PRAYER (4), THIS HONORABLE COURT BE PLEASED TO ISSUE ORDERS RESTORING THE STATUS QUO ANTE.
G. THAT THE OFFICER COMMANDING STATION, LANGAS POLICE STATION TO SUPERVISE AND ENSURE COMPLIANCE OF THE ORDERS ISSUED BY THIS COURT.
H. THAT COSTS HEREIN BE BORNE BY THE ESTATE OF THE RESPONDENT.
2. The facts pleaded in support of the prayers above are contained in the body of the present application as well as the Supporting Affidavit sworn on the 23.02.2026 and can be summarized as follows; -
i) The Plaintiff herein upon institution of this proceeding in the year 2017 did pass away on 10.12.2020.
ii) Upon the demise of the Plaintiff, the estate did not make any efforts to substitute her name with that of a legal representative until 16.06.2022 when an application for substitution was made.
iii) The 1 st to 3 rd Applicants did allege that the actions by the Court to entertain the Application dated 16.06.2022 and thereafter allowing the same was erroneous and amounts to an irregularity upon its determination in favour of the Applicant one JOAN CHEPKORIR.
iv) The 1 st to 3 rd Applicants further did plead that even after the erroneous and irregular substitution of JOAN CHEPKORIR, the pleadings before the Court were never amended to reflect the actual parties and Judgement and Decree issued by this Court and pronounced on the 29.05.2019 were erroneous and irregular.
v) The 1 st to 3 rd Applicants did state that the person known as JOAN CHEPKORIR ownership rights relate to a distinct and separate property different from the suit property in this matter and the actions of the said person known as JOAN CHEPKORIR of enforcing the Judgment and Decree issued in this suit was in bad faith and an illegality.
vi) In essence, the 1 st to 3 rd Applicants did seek this Court to grant the prayers sought in the present Application as the same were merited.
3. The present application was duly served on the Respondent herein who did oppose the same through a Replying Affidavit dated 16.03.2026.
4. The Respondent herein did plead the following facts in response to the present application; -
i) The Respondent did confirm that this Court did allow a substitution of the Plaintiff with the Respondent on the 20.04.2023.
ii) So far, the 1 st to 3 rd Applicants herein had never either sought for a review, set-aside and/or appealed against the Ruling pronounced by this Court on the 20.04.2023 allowing the substitution.
iii) The 1 st to 3 rd Applicants herein were fully aware of the application for substitution before the Court made on the 16.06.2022 in which they did participate during its prosecution and determination.
iv) The Respondent did further plead that at the time the Court was determining the issue of substitution, the Court was satisfied that the suit before it was still alive and had not abated as alleged by the 1 st to 3 rd Applicants.
v) Consequently, the present application seeking for a declaration that the suit had abated on the 20.04.2023 when the decision for substitution was made is unwarranted as the Court will be sitting on appeal of its own ruling.
vi) The Respondent did state that the execution of the Orders issued in this Court pertaining the issues in dispute had already been concluded and therefore the Court was actually functus officio and incapable of entertaining the present Application.
vii) In conclusion, the Respondent did pray that the present application be dismissed forthwith with costs.
5. The Replying Affidavit dated 16.03.2026 was duly served on the 1 st to 3 rd Applicants.
6. The 1 st to 3 rd Applicants did file a Further Affidavit which was undated based on the following facts;-
i) The 1 st to 3 rd Applicants did reiterate the contents of the supporting affidavit filed in support of the present application.
ii) The 1 st to 3 rd Applicants did state that at the time the Respondent was filing the application for substitution dated 16.06.2022, the suit had already abated on the 10.12.2021.
iii) The 1 st to 3 rd Applicants did plead therefore that the Court did not have proper jurisdiction to hear and determine the Application for substitution dated 16.06.2022 and grant the Orders for substitution dated 20.04.2023.
iv) The 1 st to 3 rd Applicants further did aver that the Ruling pronounced on the 20.04.2023 allowing the substitution of the Plaintiff herein could not revive the suit which had already abated by operation of law.
v) The 1 st to 3 rd Applicants did further plead that the failure to remove the name of the Plaintiff and replace the same with that of JOAN CHEPKORIR was a fundamental omission which made all the proceedings thereafter null and void.
vi) The 1 st to 3 rd Applicants therefore were of the view that the person known as JOAN CHEPKORIR was a stranger in the present suit and not capable of either sustaining any litigation and/or executing any Decree arising out of the proceedings herein.
vii) Further to the foregoing, the 1 st to 3 rd Applicants did state that the claim by JOAN CHEPKORIR was on a different and distinct parcel of land and not the one in dispute in this matter.
viii) In conclusion, the 1 st to 3 rd Applicants did plead that indeed they have all the rights to file the present Application in the interest of justice.
7. The Court did direct that the present Application would be canvassed by way of written submissions.
8. The 1 st to 3 rd Applicants did duly file their written submissions in support of the present application dated 23.04.2026 while the Respondent herein did file her submissions dated 20.05.2026 in opposition to the same.
9. The Court has carefully perused the present Application, the Replying Affidavit thereof, the Further Affidavit and the submissions by both parties and identifies the issues for determination as follows; -
ISSUE NO.1- WHEN DID THE ORIGINAL PLAINTIFF IN THIS MATTER PASS AWAY?
ISSUE NO.2- WHAT WAS THE STATUS OF THIS MATTER AT THE DEMISE OF THE ORIGINAL PLAINTIFF?
ISSUE NO.3- HAD THIS MATTER ABATED BY THE TIME THE APPLICATION FOR SUBSTITUTION WAS FILED?
ISSUE NO.4- DID THE COURT HAVE JURISDICTION TO HEAR AND DETERMINE THE APPLICATION FOR SUBSTITUTION?
ISSUE NO.5- IS THERE ANY VALID GROUNDS FOR THIS COURT TO REVIEW AND/OR SET-ASIDE THE RULING ALLOWING SUBSTITUTION OF THE ORIGINAL PLAINTIFF?
ISSUE NO.6- IS THERE A LAWFUL REASON WHY THE ORDERS OF THIS COURT MADE ON THE 20.12.2024 SHOULD BE STAYED AND/OR SET-ASIDE AS SOUGHT BY THE APPLICANTS?
ISSUE NO.7- IS THE PRESENT APPLICATION MERITED OR NOT?
ISSUE NO.8- WHO BEARS THE COSTS OF THE PRESENT APPLICATION?
10. The Court having duly identified the above-mentioned issues for determination, the same will now be discussed as provided below.
ISSUE NO.1- WHEN DID THE ORIGINAL PLAINTIFF IN THIS MATTER PASS AWAY?
11. The first issue for determination is to establish when the present suit was filed and when the original Plaintiff did pass away.
12. A perusal of the Court file shows that the present suit was filed on the 19.04.2017 against the 1 st to 3 rd Applicants herein.
13. According to the Death Certificate produced by the 1 st to 3 rd Applicants herein dated 11.02.2021 in relation to the original Plaintiff, it shows that she did pass away on the 10.12.2020.
14. This Court therefore hereby makes a finding that the original Plaintiff in this matter did pass away on the 10.12.2020.
ISSUE NO.2- WHAT WAS THE STATUS OF THIS MATTER AT THE DEMISE OF THE ORIGINAL PLAINTIFF?
15. The second issue for determination is what was the status of these proceedings at the time the original Plaintiff did pass away.
16. According to the Court file herein, the Judgement relating to the Plaint dated 19.04.2017 was pronounced on the 29.05.2019 and a copy of the same is in the file.
17. In other words, it is clearly on record that at the time of the original Plaintiff’s death on the 10.12.2020, the hearing of the dispute between the parties therein had been concluded on merit.
ISSUE NO.3- HAD THIS MATTER ABATED BY THE TIME THE APPLICATION FOR SUBSTITUTION WAS FILED?
18. The third issue for determination is whether the Court did have jurisdiction to entertain the Application for substitution filed by one JOAN CHEPKORIR on the 16.06.2022 or not.
19. According to the 1 st to 3 rd Applicants, the Court did not have the jurisdiction and/or powers to entertain and/or make any determination on the Application dated 16.06.2022 as the main suit had abated on the 10.12.2021.
20. The Respondent on the other hand did plead that the suit before the Court was still alive and the Court did have the jurisdiction to entertain and determine the application dated 16.06.2022 for substitution of the original Plaintiff with JOAN CHEPKORIR.
21. The question of whether the Court had the jurisdiction to entertain and determine the application for substitution dated 16.06.2022 is a fundamental one.
22. According to the 1 st to 3 rd Applicants, upon the demise of the original Plaintiff, substitution was to be undertaken within twelve months from the date of the demise.
23. In essence, the 1 st to 3 rd Applicants were of the position that the original Plaintiff having passed away on 10.12.2020, then the twelve months’ period within which substitution is allowed in law ended on the 10.12.2021.
24. The 1 st to 3 rd Applicants did state after the 10.12.2021, the suit automatically abated and the Court had no jurisdiction to entertain and/or determine an application for substitution.
25. The issue of abatement is provided for under Order 24 of the Civil Procedure Rules, 2010.
26. The provision of Order 24 Rule 1 of the Civil Procedure Rules, 2010 states as follows; -
“(1) The death of a Plaintiff or Defendant shall not cause the suit to abate if the cause of action survives or continues”)
27. Under Order 24 Rule 3 (2) of the Civil Procedure Rules, 2010, the same provides as follows; -
“(2) where within one year no application is made under Sub Rule (1), the suit shall abate so far as the deceased Plaintiff is concerned, and, on the application of the Defendant, the Court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased Plaintiff”
28. To begin with, Order 24 of the Civil Procedure Rules, 2010 is primarily anchored on the position that the proceedings before the Court are still on going at the time of the demise of either the Plaintiff and/or the Defendant.
29. The provision of Order 24 Rule 7 (1) and (2) of the Civil Procedure Rules, 2010 specifically states as follows;
“(1) where the suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of the deceased 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 on 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 the dismissal upon such terms as to costs or otherwise as it thinks fit”
30. The significant word which this Court takes judicial notice of are “any sufficient cause from continuing the suit” demonstrate that the provisions contained in Order 24 of the Civil Procedure Rules, 2010 relate to proceedings that are still pending determination by way of a judgement and either of the parties therein passes away.
31. The provisions of Order 24 of the Civil Procedure Rules, 2010 and in particular Order 24 Rule 3(2) of the Rules does not relate to matters that a judgement has already been pronounced by the time a party passes away.
32. A suit that has already been heard on merit and a Judgement pronounced in determination of the issues between the parties cannot abate after one year because there is nothing for the Court to determine between the parties therein.
33. In other words, at the time the application for substitution was filed on 16.06.2022, the suit herein had already been determined on the 29.05.2019 through a Judgement which was alive and binding on the parties unless otherwise ordered by a Court of competent jurisdiction.
ISSUE NO.4- DID THE COURT HAVE JURISDICTION TO HEAR AND DETERMINE THE APPLICATION FOR SUBSTITUTION?
34. The fourth issue is whether or not the Court had the jurisdiction to entertain and determine the application for substitution dated 16.06.2022?
35. The 1 st to 3 rd Applicants did plead that the Court did err in entertaining and making a determination in the application dated 16.06.2022 seeking the substitution of the original Plaintiff.
36. As already stated in Issue No.3, the suit between the original Plaintiff and the 1 st to 3 rd Applicants did not abate after the demise of the original owner.
37. The Judgement and Decree of this Court issued on the 29.05.2019 did survive the demise of the original Plaintiff herein.
38. The only challenge was that the party who was to execute the Judgement and Decree of this Court pronounced on the 29.05.2019 had passed away.
39. In the case of DHULLA HARICHAND-VERSUS- GULAM MOHU-UDIN & AZIZ DIN S/O GULAM MOHU-UDIN (1940) KLR Vol XIX at page 6 , the Court did observe as follows; -
“No doubt there is no express provision for substitution of the name of a representative of the deceased decree holder during the pendency of the execution proceedings but, as is apparent from a number of cases, such applications are filed and allowed, and the Courts have almost invariably treated such applications to be applications for continuation of the pending execution proceedings.
It has been held more than once that the Code is not exhaustive. It is clear from O.XXII R.12 read with Rules 3 and 4 that an execution of proceeding does not abate on the death of the decree holder.
If so, there is no bar to the execution continuing at the instance of his representative”
40. Clearly therefore, based on the above authority which this Court fully concurs with, this Court hereby makes a finding that indeed the Court had the jurisdiction to entertain and determine the Application dated 16.06.2022 seeking the substitution of the Plaintiff/ Decree Holder for purposes of execution of the Decree issued on the 29.05.2019.
ISSUE NO.5- ARE THERE ANY VALID GROUNDS FOR THIS COURT TO REVIEW AND/OR SET-ASIDE THE ORDERS ALLOWING SUBSTITUTION OF THE ORIGINAL PLAINTIFF?
41. The fifth issue is whether the 1 st to 3 rd Applicants did provide sufficient grounds for the Ruling pronounced by this Court on the 20.04.2023 regarding the substitution of the original Plaintiff with JOAN CHEPKORIR to be reviewed and/or set-aside.
42. The main ground upon which the 1 st to 3 rd Applicants have relied upon for seeking the Order for review and/or setting aside the Order made on 20.04.2023 and all subsequent proceedings thereafter is that the suit had abated on the 10.12.2021 and that the application for substitution was filed beyond the one-year period provided under Order 24 Rule 3 of the Civil Procedure Rules, 2010.
43. The two grounds pleaded by the 1 st to 3 rd Applicants have already been exhaustively discussed hereinabove and the Court had made two findings namely, that the suit herein did not abate on the 10.12.2021 as the same had already been concluded and secondly, the Court did have jurisdiction to hear and determine the application dated 16.06.2022 as it was to substitute the original Plaintiff with the legal administrator of the estate for purposes of completing the execution exercise.
44. The 1 st to 3 rd Plaintiffs did not plead any of the grounds provided under Order 45 Rule 1(b) of the Civil Procedure Rules, 2010 which are namely; the discovery of new and important facts or evidence, mistake or error apparent on the face of the record or any other sufficient reason thereof and/or proof of the same.
45. It is also significant to point out that even if the name of JOAN CHEPKORIR who was the person who substituted the original Plaintiff by virtue of the application dated 16.06.2022 and the Ruling made on 20.04.2023, the amendment of the pleadings in the concluded suit and/or proceedings was not necessary and could not in any way alter the outcome of the proceedings that had culminated in the Judgement pronounced on the 29.05.2019.
46. In the case of MUENI KIAMBA- VERSUS- MBITHI KIMEU KIMOLO (2017) eKLR, the Court did make the following finding; -
“I find there is wisdom in the above provision in that matters that have reached execution stage should be allowed to proceed without the need for substitution of deceased parties (emphasis mine).
This goes a long way in ensuring the overriding objective of the Civil Procedure Act and Rules namely the timely and expeditious determination of disputes between the parties.
Hence, it is my considered view that it is not mandatory to substitute the deceased decree holder at the execution stage and therefore the learned trial magistrate misapprehended the law when he ruled that the non-substitution of the decree holder was fatal to the suit.…”
47. In conclusion thereof, the Court hereby makes a finding that the substitution of the original Plaintiff with JOAN CHEPKORIR made on the 20.04.2023 was lawful, legal and in accordance to the law.
ISSUE NO.6- IS THERE A LAWFUL REASON WHY THE ORDERS OF THIS COURT MADE ON THE 20.12.2024 SHOULD BE STAYED AND/OR SET-ASIDE AS SOUGHT BY THE APPLICANTS?
48. The next issue is whether the 1 st to 3 rd Applicants are deserving of an Order of review and/or setting aside of the Orders made on the 20.12.2024.
49. The Orders issued on the 20.12.2024 were eviction Orders to be executed on the property known as LR.NO.ELDORET MUNICIPALITY BLOCK 12/288.
50. According to the 1 st to 3 rd Applicants’ own present application and in particular ground 11 of the reasons why the prayers should be granted, it is stated as follows;-
“11. THAT the said JOAN CHEPKORIR has forcefully taken possession and is in possession of the property belonging to the Applicants on the strength of the Orders issued by this Court on the 20.12.2024.”
51. Clearly, the 1 st to 3 rd Applicants have admitted that the Order issued on the 20.12.2024 was executed and the person known as JOAN CHEPKORIR is in occupation of the same.
52. This position was reconfirmed in the Replying Affidavit of the person known as JOAN CHEPKORIR who is representing the original Plaintiff or Decree Holder.
53. If the Orders issued on the 20.12.2024 have been implemented and/or executed as admitted by both the Applicants and the Respondent, then there is nothing for this Court to either stay and/or set-aside as sought by the 1 st to 3 rd Applicants.
ISSUE NO.7- IS THE PRESENT APPLICATION MERITED OR NOT?
54. Based on the finding in the Issues outlined hereinabove and in particular Issue No. 6, this Court is of the finding that the present application is not merited and the Orders sought therein cannot be granted.
ISSUE NO.8- WHO BEARS THE COSTS OF THE PRESENT APPLICATION?
55. On the issue of costs, this Court hereby awards the costs of the present Application in favour of the Respondent payable by the 1 st to 3 rd Applicants jointly and severally.
CONCLUSION
56. In conclusion, this Court hereby makes the following Orders in determination of the present application; -
A. THE NOTICE OF MOTION APPLICATION DATED 03.02.2026 IS NOT MERITED AND THEREFORE DISMISSED.
B. THE 1 ST TO 3 RD APPLICANTS ARE CONDEMNED TO PAY COSTS OF THE APPLICATION TO THE RESPONDENT HEREIN JOINTLY AND/OR SEVERALLY.
IN THE PRESENCE OF:
Court Assistant: Mr. Brian
Counsel for the 1 st to 3 rd Applicants: Mr. Yego
Counsel for the Respondent: Mr. Oyaro
ELC.176 OF 2017 RULING 17