I. Introduction
1. The Honourable Court was called upon to make a determination unto the Notice of Motion application dated 28th September 2025. It was filed by DR. KAWALJEET SINGH REKHI, the 2nd Defendant/Applicant. The application was brought pursuant to the provisions of Order 24 Rule 3 (2) of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.
2. Despite of service, the application never elicited any responses whatsoever. Ideally, the Court assumed that the application was unopposed. Nonetheless, the Honourable Court still proceeded to deliver a formal Ruling on its own merit whatsoever.
II. The case by the 2nd Defendant/Applicant
3. The 2nd Defendant/Applicant sought for the following orders before court:-
a) That the suit against the 2nd Defendant/Applicant has abated by operation of law and should therefore be struck out and/or dismissed.
b) That the continued pendency of this suit is prejudicial to the 2nd Defendant/Applicant.
c) Costs of this application be borne by the estate of the deceased Plaintiff; and
d) Any other orders that this Honourable Court may deem fit.
4. The application was premised on the grounds, testimonial facts and the averments made out under the 13 Paragraphed supporting affidavit sworn by DR. KAWALJEET SINGH REKHI who averred as follows that:-
a) He was the 2nd Defendant/Applicant herein and hence competent to swear this Affidavit.
b) The Plaintiff instituted this suit vide a Plaint dated 7th February, 2005 in HCCC (Mombasa) No. 26 of 2005.
c) Subsequently, vide the Amended Plaint dated 7th February, 2010, the Plaintiff/Respondent sought ‘inter alia” for the following reliefs:-
i. A declaration that the proceedings and any orders made therein (whether by consent or otherwise) by the panel of elders pursuant to the Land Disputes Tribunal Act were nullity for want of jurisdiction and of no effect;
ii. A further declaration that any proceedings premised on the above including the suit in HCC (Mombasa) No. 125 of 2004 and any other orders made therein (whether by consent or otherwise) were also a nullity in law;
iii. A further declaration that the sale and transfer of the property to the 2nd and 3rd Defendants was also a nullity in law and of no consequence;
iv. A further declaration that the property belonged to the Plaintiff and the late Mavji Megji Patel;
v. An order directing the Land Registrar, Kwale to rectify the register relating to the suit property to reflect the Plaintiff and the late Mavji Megji Patel as the registered proprietors thereof and to recall and cancel all other title deeds issued to the 2nd and 3rd Defendants or any other person whatsoever.
vi. An injunction restraining the 3rd Defendant from selling, disposing off, alienating or transferring the property to any other party or individual or entity or in any way howsoever from interfering with the same.
vii. Special damages in the sum of Kshs. 650, 000/=
viii. General damages for loss of business opportunity;
ix. An order that the Land Registrar, Kwale, one Hashim Got Sat was a Co – Conspirator of the fraud and should personally pay at least 50% of the award of general damages out of his own personal funds;
x. Costs and incidental to the suit;
xi. Any further reliefs as the Court may deem fit to grant.
d) Pursuant to that and on being served with Summons to Enter Appearance, his previous Advocates on record, Messrs. Omondi Waweru & Company Advocates filed the Memorandum of Appearance dated 2nd March 2005 and the Statement of Defence dated 17th May 2005 in response to the Plaint dated 7th February 2005.
e) The suit in Mombasa was never set down for hearing and was subsequently transferred to Kwale vide ELC No.133 of 2021.
f) The Plaintiffs Advocates informed this Honourable Court that the Plaintiff had passed away on 30th November 2021 and sought to leave to substitute the Plaintiff.
g) For the last 4 years now, the deceased Plaintiffs Advocate had sought leave from this Honourable Court to substitute but had failed to do so.
h) On 2nd February 2023, the Plaintiffs Advocate sought to leave to substitute the deceased Plaintiff and the matter was set down for Mention on 27th March 2024 to confirm substitution.
i) On 27th March 2024, the Plaintiffs Advocate again sought leave once more to substitute the deceased plaintiff and amend the Plaint. On 22nd May 2024 the Plaintiffs Advocate sought for leave to substitute the deceased Plaintiff.
j) Additionally, on 26th September 2024, the Plaintiffs Advocate sought to leave the deceased Plaintiff and amend the Plaint. On 3rd February 2025, the Counsel for the deceased Plaintiff sought 7 days leave to file the Application for substitution and the matter set down for Mention on 17th March 2025 to confirm filling of the Application to substitute.
k) On 17th March 2025, the Plaintiffs Advocate sought time to trace their client to sign the Affidavit in support of their Application to substitute and the matter set down for mention on 30th June 2025 as the final mention date to confirm filling the Application to substitute by the Plaintiff.
l) On 30th June 2025, the Plaintiffs Advocate advanced the same reasons for substitution and this Honourable Court indulged the Plaintiff with 30 days leave to file the Application to substitute.
m) 30 days’ leave lapsed on 30th July 2025 without the Application for substitution having been filed.
n) By dint of the provision of Order 24 of the Civil Procedure Rules, 2010 the suit has abated as no Application for substitution had been effected within one year of the Plaintiffs death who passed on 4 years ago.
o) Timelines were strict and meant to achieve the constitutional, statutory and rule-based objective of ensuring that Court processes dispense justice in a timely, just, efficient and cost-effective manner.
p) There had been inordinate delay attributed to on account of any dilatory tactics, deliberate inaction, negligence and indifferent on the part of the Plaintiffs estate in prosecuting the suit.
q) The continued pendency of the suit against the 2nd Defendant without resolution greatly prejudiced him as he had followed due process in purchasing the suit property from the 1st Defendant/Respondent and selling and transferring the property to the 3rd Defendant/Respondent.
r) In the circumstances, it was only proper, prudent and judicious that the Honourable Court grants the Orders sought herein as prayed.
III. Submissions
5. On 4th December 2025 while all the parties were in Court, they were directed on how the application was to be dealt with in terms of responses.
6. During this session, due to the nature of the matter and taking that only the 1st Defendant/Applicant had participated in this particular process, the Honourable Court never saw any need to grant any directions were given for submissions.
IV. Analysis and Determination
7. I have read through the pleadings and considered the relevant provisions of the Constitution of Kenya, 2010 and the law in this matter. In order to arrive to an informed, just and fair decision, the Honourable Court has condensed the subject matter into three (3) salient issues for its determination. These are: -
a) Whether the suit herein should be struck ought for having abated by operation of law
b) Whether the parties are entitled to the reliefs sought
c) Who will bear the cost of the Notice of Motion application dated 28th September 2025.
ISSUE No. a). Whether the suit herein should be struck ought for having abated by operation of law
8. Under this Sub – heading, the Honourable Court shall deliberate on the legal efficacy, nature, meaning and scope of a deceased Plaintiff and the aspects of a suit abating by the operation of law upon the party having passed on within a stipulated period. Black’s Law Dictionary defines the term “abatement” as being “the suspension or defeat of a pending action for a reason unrelated to the merits of the claim”.
9. The provisions of Order 24 of the Civil Procedure Rules, 2010 set out what should transpire when any of the litigants die. Rule 3 provides for instances when a sole Plaintiff dies. It provides that:-
3. (1) Where one of two or more Plaintiffs dies and the cause of action does not survive or continue to the surviving Plaintiff or Plaintiffs alone, or a sole Plaintiff or sole surviving Plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased Plaintiff to be made a party and shall proceed with the suit.
(2) Where within one year no application is made under subrule (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.
10. Legally speaking, the above provisions of law speaks for its self in as far as a suit abetting by operation of law upon the demise of the Plaintiff. At this juncture, the Honourable Court would need to extrapolate onto the facts of the case in order to arrive at a fair conclusion under this sub – heading. Therefore, the Honourable Court now moves to the next sub – heading below.
ISSUE No. b). Whether the parties are entitled to the reliefs sought
11. As indicated above, there is now need to critically examine the facts of this case under this Sub - heading. The Honourable Court was informed on 31st November 2021 that the Plaintiff had passed on. Although from the filed pleadings, I have not come across the Certificate of Death for the deceased Plaintiff but this fact has not been disputed. Evidently, it is discernible that more than four ( 4 ) years have lapsed without any application for substitution being made. Indeed, the Court has extended its magnanimity on the matter as the Plaintiffs advocate has addressed the court on several instances seeking time to file an application for substitution but has failed to do so. I fully appreciate the frustrations, trauma and agony the Advocates has had to go through.
12. As stated before, suit belong to clients and not Advocates in accessing the fundamental documentary support and hence firm instruction received from their clients. Besides, the Court and parties need to be guided by the legal maxim – “Litigation must come to an end”. Legally speaking, and in the given circumstances, the suit has therefore abated. I am guided by the Court of Appeal decision in of:- “Said Sweilem Gheithan Saanum – Versus - Commissioner of Lands [being sued through the Attorney - General] & 5 Others [2015] e-KLR”, where the law on abatement of suits was elaborated as follows: -
a. Generally, the death of a party does not cause the suit to abate, if the cause of action survives. But within 1 year of the death of a party, or within such time as the Court may in its discretion, for good reason determine, an application must be made for the legal representative to be made a party.
b. If no application is made within 1 year, or within the extended period allowed by the Court, the suit shall abate.
c. The legal representative of a deceased party may apply for revival of the suit, by satisfying the Court that he/she was prevented from continuing with the suit, by sufficient cause as held by the Court of Appeal in Gachuhi Muthanji – Versus - Mary Wambui Njuguna [2014] e-KLR. Abatement takes place on its own force, once no steps have been made for substitution in accordance with Order 24 Rules 3 and 4, of the Civil Procedure Rules, 2010.
13. Further, in the case of “Titus Kiragu – Versus - Jackson Mugo Mathai (2015) eKLR” it was held that:
“It is not the act of the court declaring the suit as having abated that abates the suit but by operation of law.”
14. In view of the foregoing, I discern that the issue of the death of the Plaintiff was never controverted. Additionally, it is quite evident that the Estate of the Deceased Plaintiff never took any steps to have the Plaintiff substituted by a duly appointed Legal Administrator nor Administratix within the stipulated statutory time – frame as required by Law – Order 24 Rules 1, 2 & 3 of the Civil Procedure Rules, 2010. In the given circumstances and has already elaborated extensively herein, the application by the 1st Defendant/Applicant must succeed inevitably. The suit herein has abated by the operation of law.
ISSUE No. b). Who will bear the cost of the Notice of Motion application dated 28th September 2025.
15. It is well established that the issue of costs is one under the discretion of the Court. Costs mean the award that is granted to a party upon the conclusion of any legal action or proceeding in any litigation.
16. The provision of Section 27 ( 1 ) of the Civil Procedure Act, Cap. 21 holds that costs follow the event. By the event it means the result or outcome of the legal act whatsoever. Additionally, the provision of the Order 24 Rule 2 (3) of the Civil Procedure Rules, 2010 provides that the Court may award the Defendant costs of an abated suit. The word “may” rather than “shall” are used which means that the court has discretion on the award of costs.
17. Nonetheless, given the circumstances of this suit I think it is proper for each party to bear its own costs. Also, in the case of:- “Rebecca Mijide Mungole & Another – Versus - Kenya Power & Lighting Company Limited & 2 others Civil Appeal No.283 of 2015 [2017] eKLR”, the Court of Appeal sitting at Malindi stated that:
“The sequence of the application under this procedure of what should happen in case of the death of a Plaintiff and the cause of action survives or continues, is plain. Speaking generally, by operation of the law, a suit will automatically abate where a sole Plaintiff or sole surviving Plaintiff dies and the cause of action survives or continues if no application is made within one year following his death...”.
V. Conclusion and Disposition
18. Consequently, upon causing indepth analysis to the framed issues, the Honourable Court proceeds to make the following specific orders.
a). THAT the Notice of Motion application dated 28th September, 2025 be and is hereby found to be meritorious.
b). THAT the entire suit be marked as abated and is hereby struck out.
c). THAT each party will bear its own costs.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……9TH .……. DAY OF…...MARCH ….2026
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) M/s. M Essajee Advocate holding brief for Mr. Sanjiv Khagram for the Plaintiff.
c) M/s. Kimani Advocate for the 2nd Defendant/Applicant.
d) No appearance for the 1st, 3rd and 4th Defendants.