REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
HCFA NO. E016 OF 2023
IN THE MATTER OF THE ESTATE OF THE LATE KIENJEKU NJENGA
(DECEASED)
VERONICA WANGUI NGUGI & PATRICK KAMAU NGUGI
(Suing as the legal representative of
NGUGI NJENGA WAINAINA (DECEASED) ......................APPELLANTS
-VERSUS-
ESTHER NDUKU MUCHERU (Suing as the personal
representative of the Estate of
AMOS MUCHERU MUTOGIA (deceased) ..................lst RESPONDENT
PAUL NDUNG'U MURIUKI ....................................... 2nd RESPONDENT
RULING
1. This ruling is on the Notice of Preliminary Objection dated 21/01/2026 filed by the Respondents. The Respondents object to the Appellants’ Notice of Motion application dated 18th September 2025 and the Memorandum of Appeal dated 14th December 2023 and pray that both the application and the entire appeal be dismissed with costs based on the following grounds:-
l. That the entire appeal is defective based on the following grounds:-
i) The suit is a nullity; it is not only bad but incurably bad. It is automatically null and void without more ado (i.e.), the Ist Respondent Esther Nduku Mucheru died on 14th October 2023 whereas the second Respondent Paul Ndung'u Muriuki died on 18th September 2023 and the appeal was filed on 7th December 2023 long after they were both buried.
ii) Grant of letters of Administration Ad Litem issued to the intended Respondent Moses Mucheru Mutogia on 14th May 2024 and to the 2nd intended Respondent Margaret Wairimu Ndung'u on 21st March 2024 after the suit had abated does not entitle them to be substitute in place of the deceased respondents to continue as a suit that long abated and is non-existent and the said grants of representation (ad litem) do not cure the abatement/nullity.
2. The application is frivolous, incompetent in law and an abuse of the process of the court as the suit abated automatically by operation of law by dint of Order 24 rule 3 Civil Procedure Rules i.e. more than 2 years down the line after the death of the 1st and 2nd respondents and there is no suit in being subject to the current application which is capable of being granted following legal and effective abatement of the suit in that:-
i. The mandatory requirements of Order 24 rules 3 & 7 civil procedure rules have not been satisfied the suit having abated and time having not been extended to enable the present application, the prayers sought are without valid basis in law and the applicants have no legal capacity before the court.
ii. No reasonable cause is disclosed for failure to continue the suit within the statutory period or file the application without unnecessary delay so as to enable grant of application and the court has no jurisdiction to exercise its discretion.
iii. The applicants have no locus standi and legal capacity before this court to seek revival of the suit or their substitution in place of the two deceased respondents in breach of the aforesaid provisions of Order 24 rules 3 & 7 civil procedure rules, leave or time for such not having been extended.
iv. The applicants are guilty of indolence, inordinate, inexcusable or unjustifiable delay, sat and slept on their rights alongside their advocates and only have come to court as an afterthought following a notice of objection dated 13th August 2025 addressed to Kithimani law courts by counsel for the intended respondents and copied to this honourable court through the Deputy Registrar and there is no case upon which the present application can be based.
3. The application is incapable of being argued or granted in light of the mandatory provisions and steps in dealing with abated suits and or a nullity.
4. Both the entire Appeal and the instant application are accordingly incompetent, invalid, unmerited and should be dismissed with costs.
2. Directions were given for the Preliminary Objection to be canvassed through written submissions and both parties complied by filing and exchanging their respective.
Appellants’/Applicant’s Submissions
3. The Appellants/Applicants submit that the trial court erred in entertaining arguments grounded on abatement. Succession proceedings are governed by the provisions of the Law of Succession Act (Cap 160) and the Probate and Administration Rules, not the Civil Procedure Rules unless expressly imported. Rule 63 of the Probate and Administration Rules selectively imports certain provisions of the Civil Procedure Rules, but notably excludes Order 24. This position has been affirmed in Re Estate of Gitau (Deceased) [2002] eKLR, where the court held that the concept of abatement does not strictly apply to succession proceedings.
4. Further, in Re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR, the court stated that succession causes do not abate upon death of a party since the cause survives for the benefit of the estate.
5. Additionally, Section 47 of the Law of Succession Act grants the court wide inherent powers to determine all matters relating to estates of deceased persons. The constitutional underpinning is found in Article 159 of the Constitution of Kenya 2010, which mandates courts to administer justice without undue regard to procedural technicalities. The Appellants submit that succession proceedings concern the estate and not the individual litigants. In Re Estate of Thiong'o (Deceased) [2019] eKLR, the court held that a beneficiary's interest devolves to their estate upon death and does not extinguish.
6. Thus, the death of Esther Nduku Mucheru and Paul Ndung'u Muriuki did not extinguish their claims but instead, their interests devolved to their respective estates. Substitution is therefore procedural and not jurisdictional in succession matters.
7. The Preliminary Objection is premised on an erroneous application of civil procedure principles to succession proceedings. The classic definition of a preliminary objection is found in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd 1969 EA 696 where the Court held that it must raise a pure point of law. The Respondents' objection relies on contested facts that is; death, substitution, knowledge thereof. Moreover, the preliminary objection misapplies the doctrine of abatement and only seeks to defeat substantive justice. It therefore fails the Mukisa threshold and ought to be dismissed. The failure to disclose the deaths of the Respondents was not only material and prejudicial but also contrary to the duty of Candor owed to the court. Such conduct undermines the administration of justice and renders the resultant proceedings unsafe and an abuse of the court process.
8. In light of the foregoing, the Appellants respectfully prays that this Honourable Court:
a) Dismisses the Preliminary Objection and Grounds of Opposition dated 21st January 2026 with costs;
b) Finds that the proceedings before the trial court were a nullity for having been conducted against deceased persons;
c) Allows the Appeal;
d) Issues appropriate orders to ensure the proper administration of the estate of the deceased and;
e) Award costs of the Appeal to the Appellants.
Intended Respondents’ Submissions
9. The Intended Respondents opened their submissions by setting out the chronology of events in the matter as follows:-
a) The suit was filed vide a Memorandum of Appeal dated 14/12/2023.
b) A record of appeal was filed on 18/12/2023.
c) Summons under certificate of urgency was filed on 26/5/2025.
d) A temporary stay order was issued on 29/5/2025.
e) An objection to the stay order was filed at the principal magistrate court at Kithimani and copied to this Honourable court through the deputy registrar vide a letter dated 13/8/2025 and filed electronically on 14/8/2025.
f) Summons dated 18/9/2025 seeking to substitute the intended respondents were filed on 18/9/2025.
g) A notice of appointment by counsel for the intended respondents was filed on 22/1/2026.
h) Grounds of opposition to the application dated 18/9/2025 was filed on 22/1/2026.
i) Notice of preliminary objection to the applicants summons dated 18/9/2025 and objection to the entire appeal was filed on 22/1/2026.
j) A further affidavit by the applicant was filed on 10/2/2026.
10. The Intended Respondents proceeded to submit that the suit is a nullity ab initio having been filed after the death of the 1st and 2nd respondents.
11. That the Appellants took no step at all to prosecute the appeal since the Respondents had long died and been buried before the appeal was filed as the 1st Respondent Esther Nduku Mucheru died on 14/10/2023 whereas the 2nd respondent Paul Ndungu Muriuki died on 18/9/2023 as per the death certificates attached to the letter dated 13/8/2025 addressed to the principal magistrate court at Kithimani and copied to this Honourable court.
12. The further affidavit sworn on 3/2/2026 is scandalous and fatally defective and ought to be expunged from the record for being incompetent and in contradiction with the facts of this matter.
13. The proceedings referred to by the applicants are totally different from this suit as they arise from Kithimani matter and not directions taken before this Honourable court as there is no ruling delivered in this appeal and the applicants ought to be specific. It is not true to say that counsel for the intended Respondents (Mr. Kiluva advocate holding brief) deliberately failed to inform counsel for the Applicants about the death of the two Respondents as at all times and in particular when the two Respondents were ailing until their demise our Mr. Kiluva always informed both the court and counsel for the Appellants of their positions and yet with all these facts, counsel for the Appellants proceeded to launch this instant appeal.
14. That in fact counsel for the Appellants owes Mr. Kiluva Advocate an apology as he diligently notified both the court and counsel for the Appellants the position of the deceased Respondents.
15. The Intended Respondents invite this Court to read the attached proceedings dated 26/10/2023 in Kithimani MELC 22 of 2021 to 8/2/2024 where counsel for the Appellants confirmed to the trial court that all the principal parties were deceased and therefore was at liberty to invoke the provisions of Section 54 and the fifth schedule of the law of succession Act, and there is no reason why the Appellants did not approach the court for a period of 3 years.
16. The Intended Respondents further urge this court to find that this is an academic exercise in futility which this honourable court ought not to entertain.
17. The Intended Respondents submit that the summons application dated 18/9/2025 is a complete afterthought as there was no intention or action ever taken to continue the suit before it abated or subsequently to revive it after abatement instead the Applicants sat and slept on their rights alongside their advocates and only have come to court as an afterthought following a notice of objection dated 13th August 2025 addressed to Kithimani law courts by counsel for the intended respondents and copied to this Honourable Court through the Deputy Registrar and there is no suit upon the present application can be based. It is argued that had the notice of objection not been raised by counsel for the intended Respondents this instant application would not be in court. In the circumstances, the intended Respondents do submit that this Honourable Court finds that the appeal is superfluous and vacate the orders dated 29/5/2025.
18. It is further submitted that the summons seeking to substitute the Appellants are vehemently opposed vide the grounds of opposition filed by the Ist and 2nd intended Respondents and further supported by judicial authorities under the filed list of authorities, all to the effect that the application as filed is incompetent for violation of the legal sequence of presenting an application under Order 24 Rules 3 & 7 Civil Procedure Rules and that no order for revival of the suit can issue as the Applicants have not demonstrated by any evidence that they were prevented by any sufficient / good cause from continuing the suit before abatement, which evidence is the only basis for any court to exercise its discretion to revive the suit, presuming time had previously been extended and the Respondents substituted as a party as conditions precedent to a revival order.
19. The intended Respondents rely on the said grounds of opposition, the filed preliminary objection and cited authorities in urging that both the application and the appeal be dismissed and the orders issued on 29/5/2025 by this court be vacated and the intended Respondents be awarded costs.
20. The intended Respondents cited several authorities in their submissions as follows:-
21. In Housing Finance Company of Kenya LTD (Appellant) and Nelly Nyaguthii Muriu (deceased) (respondent) 2024 e KLR at paragraph 26, page 5 the Court held that:
"when it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in which suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution. The deceased was a former employee of the applicant. It is therefore most likely that they had the contact of her next of kin. They also had the contacts of her advocates. There is then no reason why they did not approach the court for a period of I I years for the purposes of the court nominating a personal representative of the estate of the deceased to continue with the pending suit. It is the plaintiff in a suit who has the duty of moving the court for the purposes of his case being heard. It is clear in this case that the applicant went to sleep after the death of the deceased and took no action for a period of II years. I consider a period of that length to be inordinate and unreasonable. In the premises, the applicant has not shown sufficient cause for reviving the suit. The upshot is that the Appeal is a nullity, having been filed after the death of the deceased and even if it were validly before the court, no sufficient cause has been shown for reviving it. There is in the premises no merit in the application dated 30th may 2023. the same is dismissed with costs to the intended respondent.”
22. In Anne Moochi Manyange(deceased) (appellant) and TG (minor suing through her mother and next friend(respondent) [2024] eKLR at paragraph 32 page 5 the Court stated that:
"the deceased was deceased by the time the appeal was filed. A deceased person cannot file an appeal. The deceased was already deceased when he was sued. He cannot be alive to file an appeal. The proceedings in this court and the court below are both a nullity. ...there is no appeal before me. The same as there was no suit before the court.. .. wonders will never cease. Given the foregoing, I have nothing useful to say other than to strike out the appeal. I need not say that though there was no appeal, equally there is no suit.....l will not say more." in the upshot, I make the following orders;
i) There is no appeal herein as the deceased was already deceased by the time of filing appeal
ii) there was also no suit for which the court was proceeding on.
iii) the matters both in this court and the court below are thus closed with no order as to costs.”
23. In the case of Joseph Kibilat Lelei, applicant and Matura Olivia Nyakundi 1st respondent and Rose Kerubo Matura 2nd respondent, [2024] eKLR paragraph 4143 page 5 "in the judicial decision Housing Finance Company of Kenya limited v Muriu (deceased) civil appeal 281 of 2011 the court held that “a suit filed against a dead person is a nullity." "The court agreed with the respondents that the suit Nakuru CMC ELC 98 of 2023 was filed after the death of the deceased and is therefore a nullity. There is nothing to transfer or consolidate." in the upshot, the application dated 19th June, 2023 is hereby dismissed with costs to the respondents.
24. In the case of Japheth Mwangi, plaintiff versus Hamisi Juma Malee, Defendant 2022, eKLR paragraph 4 page I the court observed that:
" if the defendant dies before the suit and a suit is brought against him in the name in which he carried on business, the suit is against a dead man and it is a nullity from its inception. The suit being a nullity, the writ of summons issued in the suit by whomsoever accepted is also a nullity. Similarly, an order made in the suit allowing amendment of plaint by substituting the legal representative of the deceased as the defendant, and allowing the suit to proceed against him is also a nullity....having reviewed the above authorities, he found that the suit as against the 7th defendant, who was dead when the case was filed, was null and void ab initio”.
25. In the case of Bhaarat shah & 4 others versus Omar Said Mwatayari and another, court of appeal at Mombasa Civil Appeal No 46 of 2008(2009) eKLR in that case, a suit was filed against 2 persons one of whom was already dead when the case was filed. Judgement was entered against the deceased. An application to set aside the judgement was disallowed and the applicants appealed to the court of appeal. The court of appeal held that the judgement could not be sustained as it was entered against a person who was already dead. The court stated as follows;
“in the result, as Bharat Kumar Nathalal shah was already dead by the time the suit was filed we hold the view that the suit was a nullity and Mr. Odiaga is with respect right in conceding the appeal in respect of him on that score. We see no merit in directing that he be allowed to file a defence as he is not there to do so and the administrators to his estate cannot in law take over the matter as it was filed after he was already dead. " I am bound by the above decision of the court of appeal. I have no option but to find that the suit against the defendant was a nullity ab initio and I hereby strike it out.”
26. In the case of Abbas M. Yussuf, applicant versus Mohamed Osman said, respondent, 2012 eKLR paragraph 5 page 2 the court held :
"an action filed against a dead person is a nullity ab initio". These proceedings are a nullity. The application of 29/3/2012 is allowed. The suit is hereby struck out with costs to the administrators to be met by Abbas M. Yussuf the applicant.”
27. The intended Respondents maintain that the Appeal abated on 14th December 2024 one year after the death of both the 1st and 2nd appellants who died on 14/10/2023 and 18/9/2023 as no application was filed to continue the suit within one year as required.
28. Placing reliance in Felix Etoko and Hussein Mwanza Etoko (deceased) vs Abdalla Anabaswa Mwanza and Yusuf Otochi Mwanza in Succession Appeal 36 of 2016 Court of Appeal at Kisumu where the court was faced with a similar application dated 10/8/2025, the applicants, Abdalla Anabaswa Mwanza, Yusuf Otochi Mwanza and Adam Siro Mwanza, sought the following orders:-
“i) That leave be granted them to enlarge time so that they be substituted in the appeal in place of the deceased.
ii) that upon granting of prayer I herein above, the deceased be substituted by the applicants who are the legal personal representatives of his estate.
iii) that the costs of this application be in the cause.
iv) any other relief this Honourable court deems fit and just to grant.
according to the applicants, the appeal abated as they were trying to agree on who among the huge polygamous family the deceased left behind should the petition for the grant of the letters of administration in respect of the deceased estate as well as financial constraints that were facing them. This is now something behind them since they have now agreed on the persons to administer the estate; the applicants. They also claimed that before the deceased passed on, he filed a bill of costs against the respondent that is pending taxation in this court and the substitution is therefore to enable them proceed with taxation as that cause of action survived the deceased.
The application is vehemently opposed through a replying affidavit dated 30/9/2025 by the respondent. The gist of the opposition is that there is no automatic right of substitution in a matter that has abated by operation of Law and that such substitution as envisaged in the instant application would serve no legal purpose. That what the applicants should have done first is to seek the revival of the abated appeal before seeking thereafter the substitution. In my view, it is trite law that if no application for substitution is made within one year of the death of either party to an appeal, the appeal shall abate automatically by operation of law, see rule 102(2) of the court of appeal rules. In a nutshell it provides that where a party to an appeal dies, and no substitution is made within one year, the appeal abates against the surviving party or parties.”
29. In the case of Sweilam Gbeitham vs Commissioner of Lands & 5 Others [2015] eKLR, the court held that:-
“Where a party dies, the suit does not abate automatically. Abatement only occurs after one year if no substitution is made. In this case no prayer for revival has been made in the application. In the absence of such prayer, I would agree with the respondent that the application is fatally defective. Given all the foregoing, I would dismiss the application with costs to the respondent”.
30. As expounded by judicial authorities, Order 24 Rule 3 provides a strict and sequential procedure for revival of abated suits. Judicial authorities have expounded this strict sequential legal procedure and process for the sequence of applications and or orders to be sought and granted under the rules so as to ultimately revive an abated suit, one application, step, order at a time without skipping any or interchanging or intermixing them. What becomes clear about the sequence is that an application must apply for, seek and obtain three distinct applications, steps, orders one after the other in the correct order or sequence (i.e) the first step is to seek and obtain an extension of time (leave) which had elapsed to make the application for substitution which would be the second step only after time has been extended.
31. The third step after the substitution following initial extension of time is to seek revival of the suit, which final prayer and revival can by law only be upon proof that the personal representative was prevented by sufficient or good cause from seeking substitution and continuing the suit before the abatement.
32. Sufficient or good cause demonstrated by evidence is a condition precedent to revival of the suit and only comes into consideration if time has been in the first instance prayed applied for and extended and secondly only after the applicant had been substituted as a party to the suit which substitution gives him capacity to seek revival.
33. The Applicants therefore have a burden of proving sufficient or good cause vide proper affidavit evidence which prevented them from seeking substitution and continuing the suit within one year before it abated.
34. The suit abated by operation of law on effluxion of time as provided. The application as filed seeking only substitution is incompetent as it contravenes the strict legal sequence for such applications under Order 24 Rules 3 & 7 Civil Procedure Rules 2010 as expounded by judicial authorities set at the Court of Appeal which bind this court to apply. The prayer for substitution before the court cannot be considered unless the applicant has before such prayers firstly applied and obtained, as a condition precedent, an extension of time which had elapsed causing abatement so that the Respondents can be substituted as parties and is only upon such extension and substitution that they can seek revival of the abated suit, which order cannot issue in absence of proven sufficient or good cause that prevented them from continuing the suit before abatement as earlier stated.
35. It is not competent to seek the two prayers in the present application, and it is not competent to interchange the two prayers in the application so as to seek revival before substitution, and the two prayers cannot be sought alone in the absence of extension of time to be granted prior to consideration of the two prayers, if properly set, substitution and then revival.
36. In considering revival, (after grant of extension of time and then substitution) an abated suit cannot be revived as an automatic course / order since sufficient or good cause is a mandatory matter and a burden of proof to be discharged so as to satisfy the court that sufficient cause prevented substitution and continuation of a suit within a year of the death of the Respondents before abatement as the applicants were under a duty to seek substitution and continuation of the suit.
37. The application before the court has violated and breached the applicable provisions and judicial authorities as to the sequence of applications / steps / prayers / orders that should follow each other, one prayer being granted before the next in sequential order, and requirements for proof of sufficient / good cause as a condition precedent to an order for revival.
38. In Mbugua Wangige & another -vs- Muthanii Wangige [2015[ eKLR at paragraph 25 at page 5, it is stated that... as pointed out above, the Court of Appeal was categorical that there was no reasonable cause upon which the learned Judge could have exercised his discretion in favour of the Respondent. The decision of the Court of Appeal was partially by the failure of the Respondent to give any explanation as to the delay from....
39. In Joseph Gachuhi Muthanii -vs- Mary Wambui Niuguna [2014] eKLR the Court of Appeal said that:-
“ before making an order to revive an abated suit, the applicant must prove that he was prevented by sufficient cause from continuing the suit within one year of the death before abatement. He must demonstrate on valid evidence this good or sufficient cause preventing him from continuing the suit within one year of plaintiff’s death.
A court cannot revive an abated suit without proof of sufficient or good cause. Definition for "Good cause" is at paragraph 12 at page 14 "sufficient cause or good cause in law means the burden placed on a litigant (usually by Court Rule or Order) to show why a request should be granted or an action excused. Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubt in a Judge's mind. The explanation should not leave unexplained gaps in sequence of events".
40. The present applicant has given no explanation or sufficient / good cause at all in their supporting affidavit for the delay to apply to substitute and continue the suit before abatement upon which this court can grant an order for revival of the suit (this notwithstanding blunder of absence of prayer for extension of time, and interchanging revival and substitution in breach of the rules and authorities).
41. The summons application filed on 18/9/2025 is therefore evidently grossly incompetent as it fails to follow the strict mandatory sequence of applications or steps necessary to revive an abated suit as above expounded and does not demonstrate sufficient or good cause that prevented them from substitution and continuing the suit before abatement in so far as it seeks only one incompetent prayer:- to revive the suit AND to substitute the deceased Respondents with the intended Respondents would amount to wrongfully "short circuiting" Order 24 Rules 3 & 7 Civil Procedure Rules 2010 as expounded in the Rebecca Mijide Mungole case discussed below.
42. In Rebecca Mijide Mungole & Another -vs- Kenya Power and Lighting Company Ltd & others [2017] eKLR, the law was clearly set out (i.e.) the order of the three (3) procedural steps / prayers to be sought and granted before ultimate revival and substitution order at pages 2-5. A sequence of events / prayers / orders must follow each other without skipping or intermixing each other as follows:-
The 1st application prayer, a step must be to seek for extension of time for the legal representative to apply for substitution.
The 2nd application prayer, a step (after extension of time is granted) is for the applicant to seek to be substituted and enjoined in the suit (which then gives him capacity, as a party, if granted) to seek the 3rd step.
The 3rd and final application prayer, a step (only if the first two (2) are granted) is to seek to revive the abated suit.
43. The Applicant should not skip or intermix any of the above steps at all, as doing so is to "short circuit" Order 24 Rule 3 & 7 which is forbidden.
44. It is expressly provided, and expounded in the authorities that any application not conforming to the 3 sequential steps or interchanges or intermixes the steps is incompetent and short circuits the law. The Applicants have skipped the most important and fundamental primary step; to seek and obtain the extension of the time and have intermixed and interchanged the other two steps in seeking revival before substitution and all together skipping the first step for extension of time.
45. At page 2 of the above authority, the Court of Appeal quoted with approval Sergon, J in HCCA No. 142 of 2013 where he had observed that under Order 24 Rule 3 (2) an application for revival of a suit ought to be PRECEDED by an application for extension of time within which to apply for substitution and revival stating that I'm persuaded that the appeal should succeed on the ground that the respondents proceeded to file an application for
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IN THE HIGH COURT OF KENYA AT MACHAKOS
HCFA NO. E016 OF 2023
IN THE MATTER OF THE ESTATE OF THE LATE KIENJEKU NJENGA
(DECEASED)
VERONICA WANGUI NGUGI & PATRICK KAMAU NGUGI
(Suing as the legal representative of
NGUGI NJENGA WAINAINA (DECEASED) ......................APPELLANTS
-VERSUS-
ESTHER NDUKU MUCHERU (Suing as the personal
representative of the Estate of
AMOS MUCHERU MUTOGIA (deceased) ..................lst RESPONDENT
PAUL NDUNG'U MURIUKI ....................................... 2nd RESPONDENT
RULING
1. This ruling is on the Notice of Preliminary Objection dated 21/01/2026 filed by the Respondents. The Respondents object to the Appellants’ Notice of Motion application dated 18th September 2025 and the Memorandum of Appeal dated 14th December 2023 and pray that both the application and the entire appeal be dismissed with costs based on the following grounds:-
l. That the entire appeal is defective based on the following grounds:-
i) The suit is a nullity; it is not only bad but incurably bad. It is automatically null and void without more ado (i.e.), the Ist Respondent Esther Nduku Mucheru died on 14th October 2023 whereas the second Respondent Paul Ndung'u Muriuki died on 18th September 2023 and the appeal was filed on 7th December 2023 long after they were both buried.
ii) Grant of letters of Administration Ad Litem issued to the intended Respondent Moses Mucheru Mutogia on 14th May 2024 and to the 2nd intended Respondent Margaret Wairimu Ndung'u on 21st March 2024 after the suit had abated does not entitle them to be substitute in place of the deceased respondents to continue as a suit that long abated and is non-existent and the said grants of representation (ad litem) do not cure the abatement/nullity.
2. The application is frivolous, incompetent in law and an abuse of the process of the court as the suit abated automatically by operation of law by dint of Order 24 rule 3 Civil Procedure Rules i.e. more than 2 years down the line after the death of the 1st and 2nd respondents and there is no suit in being subject to the current application which is capable of being granted following legal and effective abatement of the suit in that:-
i. The mandatory requirements of Order 24 rules 3 & 7 civil procedure rules have not been satisfied the suit having abated and time having not been extended to enable the present application, the prayers sought are without valid basis in law and the applicants have no legal capacity before the court.
ii. No reasonable cause is disclosed for failure to continue the suit within the statutory period or file the application without unnecessary delay so as to enable grant of application and the court has no jurisdiction to exercise its discretion.
iii. The applicants have no locus standi and legal capacity before this court to seek revival of the suit or their substitution in place of the two deceased respondents in breach of the aforesaid provisions of Order 24 rules 3 & 7 civil procedure rules, leave or time for such not having been extended.
iv. The applicants are guilty of indolence, inordinate, inexcusable or unjustifiable delay, sat and slept on their rights alongside their advocates and only have come to court as an afterthought following a notice of objection dated 13th August 2025 addressed to Kithimani law courts by counsel for the intended respondents and copied to this honourable court through the Deputy Registrar and there is no case upon which the present application can be based.
3. The application is incapable of being argued or granted in light of the mandatory provisions and steps in dealing with abated suits and or a nullity.
4. Both the entire Appeal and the instant application are accordingly incompetent, invalid, unmerited and should be dismissed with costs.
2. Directions were given for the Preliminary Objection to be canvassed through written submissions and both parties complied by filing and exchanging their respective.
Appellants’/Applicant’s Submissions
3. The Appellants/Applicants submit that the trial court erred in entertaining arguments grounded on abatement. Succession proceedings are governed by the provisions of the Law of Succession Act (Cap 160) and the Probate and Administration Rules, not the Civil Procedure Rules unless expressly imported. Rule 63 of the Probate and Administration Rules selectively imports certain provisions of the Civil Procedure Rules, but notably excludes Order 24. This position has been affirmed in Re Estate of Gitau (Deceased) [2002] eKLR, where the court held that the concept of abatement does not strictly apply to succession proceedings.
4. Further, in Re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR, the court stated that succession causes do not abate upon death of a party since the cause survives for the benefit of the estate.
5. Additionally, Section 47 of the Law of Succession Act grants the court wide inherent powers to determine all matters relating to estates of deceased persons. The constitutional underpinning is found in Article 159 of the Constitution of Kenya 2010, which mandates courts to administer justice without undue regard to procedural technicalities. The Appellants submit that succession proceedings concern the estate and not the individual litigants. In Re Estate of Thiong'o (Deceased) [2019] eKLR, the court held that a beneficiary's interest devolves to their estate upon death and does not extinguish.
6. Thus, the death of Esther Nduku Mucheru and Paul Ndung'u Muriuki did not extinguish their claims but instead, their interests devolved to their respective estates. Substitution is therefore procedural and not jurisdictional in succession matters.
7. The Preliminary Objection is premised on an erroneous application of civil procedure principles to succession proceedings. The classic definition of a preliminary objection is found in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd 1969 EA 696 where the Court held that it must raise a pure point of law. The Respondents' objection relies on contested facts that is; death, substitution, knowledge thereof. Moreover, the preliminary objection misapplies the doctrine of abatement and only seeks to defeat substantive justice. It therefore fails the Mukisa threshold and ought to be dismissed. The failure to disclose the deaths of the Respondents was not only material and prejudicial but also contrary to the duty of Candor owed to the court. Such conduct undermines the administration of justice and renders the resultant proceedings unsafe and an abuse of the court process.
8. In light of the foregoing, the Appellants respectfully prays that this Honourable Court:
a) Dismisses the Preliminary Objection and Grounds of Opposition dated 21st January 2026 with costs;
b) Finds that the proceedings before the trial court were a nullity for having been conducted against deceased persons;
c) Allows the Appeal;
d) Issues appropriate orders to ensure the proper administration of the estate of the deceased and;
e) Award costs of the Appeal to the Appellants.
Intended Respondents’ Submissions
9. The Intended Respondents opened their submissions by setting out the chronology of events in the matter as follows:-
a) The suit was filed vide a Memorandum of Appeal dated 14/12/2023.
b) A record of appeal was filed on 18/12/2023.
c) Summons under certificate of urgency was filed on 26/5/2025.
d) A temporary stay order was issued on 29/5/2025.
e) An objection to the stay order was filed at the principal magistrate court at Kithimani and copied to this Honourable court through the deputy registrar vide a letter dated 13/8/2025 and filed electronically on 14/8/2025.
f) Summons dated 18/9/2025 seeking to substitute the intended respondents were filed on 18/9/2025.
g) A notice of appointment by counsel for the intended respondents was filed on 22/1/2026.
h) Grounds of opposition to the application dated 18/9/2025 was filed on 22/1/2026.
i) Notice of preliminary objection to the applicants summons dated 18/9/2025 and objection to the entire appeal was filed on 22/1/2026.
j) A further affidavit by the applicant was filed on 10/2/2026.
10. The Intended Respondents proceeded to submit that the suit is a nullity ab initio having been filed after the death of the 1st and 2nd respondents.
11. That the Appellants took no step at all to prosecute the appeal since the Respondents had long died and been buried before the appeal was filed as the 1st Respondent Esther Nduku Mucheru died on 14/10/2023 whereas the 2nd respondent Paul Ndungu Muriuki died on 18/9/2023 as per the death certificates attached to the letter dated 13/8/2025 addressed to the principal magistrate court at Kithimani and copied to this Honourable court.
12. The further affidavit sworn on 3/2/2026 is scandalous and fatally defective and ought to be expunged from the record for being incompetent and in contradiction with the facts of this matter.
13. The proceedings referred to by the applicants are totally different from this suit as they arise from Kithimani matter and not directions taken before this Honourable court as there is no ruling delivered in this appeal and the applicants ought to be specific. It is not true to say that counsel for the intended Respondents (Mr. Kiluva advocate holding brief) deliberately failed to inform counsel for the Applicants about the death of the two Respondents as at all times and in particular when the two Respondents were ailing until their demise our Mr. Kiluva always informed both the court and counsel for the Appellants of their positions and yet with all these facts, counsel for the Appellants proceeded to launch this instant appeal.
14. That in fact counsel for the Appellants owes Mr. Kiluva Advocate an apology as he diligently notified both the court and counsel for the Appellants the position of the deceased Respondents.
15. The Intended Respondents invite this Court to read the attached proceedings dated 26/10/2023 in Kithimani MELC 22 of 2021 to 8/2/2024 where counsel for the Appellants confirmed to the trial court that all the principal parties were deceased and therefore was at liberty to invoke the provisions of Section 54 and the fifth schedule of the law of succession Act, and there is no reason why the Appellants did not approach the court for a period of 3 years.
16. The Intended Respondents further urge this court to find that this is an academic exercise in futility which this honourable court ought not to entertain.
17. The Intended Respondents submit that the summons application dated 18/9/2025 is a complete afterthought as there was no intention or action ever taken to continue the suit before it abated or subsequently to revive it after abatement instead the Applicants sat and slept on their rights alongside their advocates and only have come to court as an afterthought following a notice of objection dated 13th August 2025 addressed to Kithimani law courts by counsel for the intended respondents and copied to this Honourable Court through the Deputy Registrar and there is no suit upon the present application can be based. It is argued that had the notice of objection not been raised by counsel for the intended Respondents this instant application would not be in court. In the circumstances, the intended Respondents do submit that this Honourable Court finds that the appeal is superfluous and vacate the orders dated 29/5/2025.
18. It is further submitted that the summons seeking to substitute the Appellants are vehemently opposed vide the grounds of opposition filed by the Ist and 2nd intended Respondents and further supported by judicial authorities under the filed list of authorities, all to the effect that the application as filed is incompetent for violation of the legal sequence of presenting an application under Order 24 Rules 3 & 7 Civil Procedure Rules and that no order for revival of the suit can issue as the Applicants have not demonstrated by any evidence that they were prevented by any sufficient / good cause from continuing the suit before abatement, which evidence is the only basis for any court to exercise its discretion to revive the suit, presuming time had previously been extended and the Respondents substituted as a party as conditions precedent to a revival order.
19. The intended Respondents rely on the said grounds of opposition, the filed preliminary objection and cited authorities in urging that both the application and the appeal be dismissed and the orders issued on 29/5/2025 by this court be vacated and the intended Respondents be awarded costs.
20. The intended Respondents cited several authorities in their submissions as follows:-
21. In Housing Finance Company of Kenya LTD (Appellant) and Nelly Nyaguthii Muriu (deceased) (respondent) 2024 e KLR at paragraph 26, page 5 the Court held that:
"when it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in which suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution. The deceased was a former employee of the applicant. It is therefore most likely that they had the contact of her next of kin. They also had the contacts of her advocates. There is then no reason why they did not approach the court for a period of I I years for the purposes of the court nominating a personal representative of the estate of the deceased to continue with the pending suit. It is the plaintiff in a suit who has the duty of moving the court for the purposes of his case being heard. It is clear in this case that the applicant went to sleep after the death of the deceased and took no action for a period of II years. I consider a period of that length to be inordinate and unreasonable. In the premises, the applicant has not shown sufficient cause for reviving the suit. The upshot is that the Appeal is a nullity, having been filed after the death of the deceased and even if it were validly before the court, no sufficient cause has been shown for reviving it. There is in the premises no merit in the application dated 30th may 2023. the same is dismissed with costs to the intended respondent.”
22. In Anne Moochi Manyange(deceased) (appellant) and TG (minor suing through her mother and next friend(respondent) [2024] eKLR at paragraph 32 page 5 the Court stated that:
"the deceased was deceased by the time the appeal was filed. A deceased person cannot file an appeal. The deceased was already deceased when he was sued. He cannot be alive to file an appeal. The proceedings in this court and the court below are both a nullity. ...there is no appeal before me. The same as there was no suit before the court.. .. wonders will never cease. Given the foregoing, I have nothing useful to say other than to strike out the appeal. I need not say that though there was no appeal, equally there is no suit.....l will not say more." in the upshot, I make the following orders;
i) There is no appeal herein as the deceased was already deceased by the time of filing appeal
ii) there was also no suit for which the court was proceeding on.
iii) the matters both in this court and the court below are thus closed with no order as to costs.”
23. In the case of Joseph Kibilat Lelei, applicant and Matura Olivia Nyakundi 1st respondent and Rose Kerubo Matura 2nd respondent, [2024] eKLR paragraph 4143 page 5 "in the judicial decision Housing Finance Company of Kenya limited v Muriu (deceased) civil appeal 281 of 2011 the court held that “a suit filed against a dead person is a nullity." "The court agreed with the respondents that the suit Nakuru CMC ELC 98 of 2023 was filed after the death of the deceased and is therefore a nullity. There is nothing to transfer or consolidate." in the upshot, the application dated 19th June, 2023 is hereby dismissed with costs to the respondents.
24. In the case of Japheth Mwangi, plaintiff versus Hamisi Juma Malee, Defendant 2022, eKLR paragraph 4 page I the court observed that:
" if the defendant dies before the suit and a suit is brought against him in the name in which he carried on business, the suit is against a dead man and it is a nullity from its inception. The suit being a nullity, the writ of summons issued in the suit by whomsoever accepted is also a nullity. Similarly, an order made in the suit allowing amendment of plaint by substituting the legal representative of the deceased as the defendant, and allowing the suit to proceed against him is also a nullity....having reviewed the above authorities, he found that the suit as against the 7th defendant, who was dead when the case was filed, was null and void ab initio”.
25. In the case of Bhaarat shah & 4 others versus Omar Said Mwatayari and another, court of appeal at Mombasa Civil Appeal No 46 of 2008(2009) eKLR in that case, a suit was filed against 2 persons one of whom was already dead when the case was filed. Judgement was entered against the deceased. An application to set aside the judgement was disallowed and the applicants appealed to the court of appeal. The court of appeal held that the judgement could not be sustained as it was entered against a person who was already dead. The court stated as follows;
“in the result, as Bharat Kumar Nathalal shah was already dead by the time the suit was filed we hold the view that the suit was a nullity and Mr. Odiaga is with respect right in conceding the appeal in respect of him on that score. We see no merit in directing that he be allowed to file a defence as he is not there to do so and the administrators to his estate cannot in law take over the matter as it was filed after he was already dead. " I am bound by the above decision of the court of appeal. I have no option but to find that the suit against the defendant was a nullity ab initio and I hereby strike it out.”
26. In the case of Abbas M. Yussuf, applicant versus Mohamed Osman said, respondent, 2012 eKLR paragraph 5 page 2 the court held :
"an action filed against a dead person is a nullity ab initio". These proceedings are a nullity. The application of 29/3/2012 is allowed. The suit is hereby struck out with costs to the administrators to be met by Abbas M. Yussuf the applicant.”
27. The intended Respondents maintain that the Appeal abated on 14th December 2024 one year after the death of both the 1st and 2nd appellants who died on 14/10/2023 and 18/9/2023 as no application was filed to continue the suit within one year as required.
28. Placing reliance in Felix Etoko and Hussein Mwanza Etoko (deceased) vs Abdalla Anabaswa Mwanza and Yusuf Otochi Mwanza in Succession Appeal 36 of 2016 Court of Appeal at Kisumu where the court was faced with a similar application dated 10/8/2025, the applicants, Abdalla Anabaswa Mwanza, Yusuf Otochi Mwanza and Adam Siro Mwanza, sought the following orders:-
“i) That leave be granted them to enlarge time so that they be substituted in the appeal in place of the deceased.
ii) that upon granting of prayer I herein above, the deceased be substituted by the applicants who are the legal personal representatives of his estate.
iii) that the costs of this application be in the cause.
iv) any other relief this Honourable court deems fit and just to grant.
according to the applicants, the appeal abated as they were trying to agree on who among the huge polygamous family the deceased left behind should the petition for the grant of the letters of administration in respect of the deceased estate as well as financial constraints that were facing them. This is now something behind them since they have now agreed on the persons to administer the estate; the applicants. They also claimed that before the deceased passed on, he filed a bill of costs against the respondent that is pending taxation in this court and the substitution is therefore to enable them proceed with taxation as that cause of action survived the deceased.
The application is vehemently opposed through a replying affidavit dated 30/9/2025 by the respondent. The gist of the opposition is that there is no automatic right of substitution in a matter that has abated by operation of Law and that such substitution as envisaged in the instant application would serve no legal purpose. That what the applicants should have done first is to seek the revival of the abated appeal before seeking thereafter the substitution. In my view, it is trite law that if no application for substitution is made within one year of the death of either party to an appeal, the appeal shall abate automatically by operation of law, see rule 102(2) of the court of appeal rules. In a nutshell it provides that where a party to an appeal dies, and no substitution is made within one year, the appeal abates against the surviving party or parties.”
29. In the case of Sweilam Gbeitham vs Commissioner of Lands & 5 Others [2015] eKLR, the court held that:-
“Where a party dies, the suit does not abate automatically. Abatement only occurs after one year if no substitution is made. In this case no prayer for revival has been made in the application. In the absence of such prayer, I would agree with the respondent that the application is fatally defective. Given all the foregoing, I would dismiss the application with costs to the respondent”.
30. As expounded by judicial authorities, Order 24 Rule 3 provides a strict and sequential procedure for revival of abated suits. Judicial authorities have expounded this strict sequential legal procedure and process for the sequence of applications and or orders to be sought and granted under the rules so as to ultimately revive an abated suit, one application, step, order at a time without skipping any or interchanging or intermixing them. What becomes clear about the sequence is that an application must apply for, seek and obtain three distinct applications, steps, orders one after the other in the correct order or sequence (i.e) the first step is to seek and obtain an extension of time (leave) which had elapsed to make the application for substitution which would be the second step only after time has been extended.
31. The third step after the substitution following initial extension of time is to seek revival of the suit, which final prayer and revival can by law only be upon proof that the personal representative was prevented by sufficient or good cause from seeking substitution and continuing the suit before the abatement.
32. Sufficient or good cause demonstrated by evidence is a condition precedent to revival of the suit and only comes into consideration if time has been in the first instance prayed applied for and extended and secondly only after the applicant had been substituted as a party to the suit which substitution gives him capacity to seek revival.
33. The Applicants therefore have a burden of proving sufficient or good cause vide proper affidavit evidence which prevented them from seeking substitution and continuing the suit within one year before it abated.
34. The suit abated by operation of law on effluxion of time as provided. The application as filed seeking only substitution is incompetent as it contravenes the strict legal sequence for such applications under Order 24 Rules 3 & 7 Civil Procedure Rules 2010 as expounded by judicial authorities set at the Court of Appeal which bind this court to apply. The prayer for substitution before the court cannot be considered unless the applicant has before such prayers firstly applied and obtained, as a condition precedent, an extension of time which had elapsed causing abatement so that the Respondents can be substituted as parties and is only upon such extension and substitution that they can seek revival of the abated suit, which order cannot issue in absence of proven sufficient or good cause that prevented them from continuing the suit before abatement as earlier stated.
35. It is not competent to seek the two prayers in the present application, and it is not competent to interchange the two prayers in the application so as to seek revival before substitution, and the two prayers cannot be sought alone in the absence of extension of time to be granted prior to consideration of the two prayers, if properly set, substitution and then revival.
36. In considering revival, (after grant of extension of time and then substitution) an abated suit cannot be revived as an automatic course / order since sufficient or good cause is a mandatory matter and a burden of proof to be discharged so as to satisfy the court that sufficient cause prevented substitution and continuation of a suit within a year of the death of the Respondents before abatement as the applicants were under a duty to seek substitution and continuation of the suit.
37. The application before the court has violated and breached the applicable provisions and judicial authorities as to the sequence of applications / steps / prayers / orders that should follow each other, one prayer being granted before the next in sequential order, and requirements for proof of sufficient / good cause as a condition precedent to an order for revival.
38. In Mbugua Wangige & another -vs- Muthanii Wangige [2015[ eKLR at paragraph 25 at page 5, it is stated that... as pointed out above, the Court of Appeal was categorical that there was no reasonable cause upon which the learned Judge could have exercised his discretion in favour of the Respondent. The decision of the Court of Appeal was partially by the failure of the Respondent to give any explanation as to the delay from....
39. In Joseph Gachuhi Muthanii -vs- Mary Wambui Niuguna [2014] eKLR the Court of Appeal said that:-
“ before making an order to revive an abated suit, the applicant must prove that he was prevented by sufficient cause from continuing the suit within one year of the death before abatement. He must demonstrate on valid evidence this good or sufficient cause preventing him from continuing the suit within one year of plaintiff’s death.
A court cannot revive an abated suit without proof of sufficient or good cause. Definition for "Good cause" is at paragraph 12 at page 14 "sufficient cause or good cause in law means the burden placed on a litigant (usually by Court Rule or Order) to show why a request should be granted or an action excused. Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubt in a Judge's mind. The explanation should not leave unexplained gaps in sequence of events".
40. The present applicant has given no explanation or sufficient / good cause at all in their supporting affidavit for the delay to apply to substitute and continue the suit before abatement upon which this court can grant an order for revival of the suit (this notwithstanding blunder of absence of prayer for extension of time, and interchanging revival and substitution in breach of the rules and authorities).
41. The summons application filed on 18/9/2025 is therefore evidently grossly incompetent as it fails to follow the strict mandatory sequence of applications or steps necessary to revive an abated suit as above expounded and does not demonstrate sufficient or good cause that prevented them from substitution and continuing the suit before abatement in so far as it seeks only one incompetent prayer:- to revive the suit AND to substitute the deceased Respondents with the intended Respondents would amount to wrongfully "short circuiting" Order 24 Rules 3 & 7 Civil Procedure Rules 2010 as expounded in the Rebecca Mijide Mungole case discussed below.
42. In Rebecca Mijide Mungole & Another -vs- Kenya Power and Lighting Company Ltd & others [2017] eKLR, the law was clearly set out (i.e.) the order of the three (3) procedural steps / prayers to be sought and granted before ultimate revival and substitution order at pages 2-5. A sequence of events / prayers / orders must follow each other without skipping or intermixing each other as follows:-
The 1st application prayer, a step must be to seek for extension of time for the legal representative to apply for substitution.
The 2nd application prayer, a step (after extension of time is granted) is for the applicant to seek to be substituted and enjoined in the suit (which then gives him capacity, as a party, if granted) to seek the 3rd step.
The 3rd and final application prayer, a step (only if the first two (2) are granted) is to seek to revive the abated suit.
43. The Applicant should not skip or intermix any of the above steps at all, as doing so is to "short circuit" Order 24 Rule 3 & 7 which is forbidden.
44. It is expressly provided, and expounded in the authorities that any application not conforming to the 3 sequential steps or interchanges or intermixes the steps is incompetent and short circuits the law. The Applicants have skipped the most important and fundamental primary step; to seek and obtain the extension of the time and have intermixed and interchanged the other two steps in seeking revival before substitution and all together skipping the first step for extension of time.
45. At page 2 of the above authority, the Court of Appeal quoted with approval Sergon, J in HCCA No. 142 of 2013 where he had observed that under Order 24 Rule 3 (2) an application for revival of a suit ought to be PRECEDED by an application for extension of time within which to apply for substitution and revival stating that I'm persuaded that the appeal should succeed on the ground that the respondents proceeded to file an application for
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