Applicants Case
The applicant seeks orders that the court does grant leave to the firm of Musa Boaz & Thomas Advocates to come on record in place of Marende Necheza Advocates. This order has been granted. The applicant further seeks an order that that the suit which abated upon the death of the Plaintiff on 25th October 2023 be revived and that Omar Awadh Mbarak, being the legal representative of the deceased Plaintiff pursuant to the Grant of Letters of Administration ad litem issued on 13th February 2026, be substituted in place of the deceased Plaintiff. The ex parte proceedings and the judgment delivered on 6th December 2023 be set aside. The suit be reopened for hearing and determination on merit. Costs of this application be in the cause
The application is based on the grounds as set out in the application and on the affidavit of Omar Awadh Mbarak. The grounds of the application are that the Plaintiff herein died on 25th October 2023 while the suit was pending before this Honourable Court and prior to delivery of judgment. Before her death, the Plaintiff had been gravely ill and bedridden and was therefore unable to attend court or effectively participate in the proceedings. Unbeknown to her and her family, the matter proceeded ex parte and judgment was subsequently delivered on 6th December 2023.
That by operation of Order 24 Rule 3(2) of the Civil Procedure Rules, the suit abated upon lapse of one year from the date of death as no substitution had been effected within that period. The Applicant has since obtained a Grant of Letters of Administration ad litem on 13th February 2026 for purposes of prosecuting this suit on behalf of the estate.
The proceedings culminating in the judgment were undertaken against a deceased person, rendering the same un-procedural and a nullity in law, as a court cannot lawfully proceed against a party who lacks legal capacity. The cause of action herein survives the deceased and it is in the interest of substantive justice that the suit be revived, the legal representative substituted, and the matter reopened for hearing on merit so that the estate is not condemned unheard.
The applicant believes that the Defendant will not suffer prejudice that cannot be compensated by costs, whereas the estate of the deceased stands to suffer grave and irreparable prejudice if the orders sought are not granted and that unless this matter is heard urgently and orders sought herein granted the Applicant shall suffer irreparable harm based on an outright procedural impropriety and illegality. That unless this Honourable Court pronounces itself on this matter and allows the application hereof the Applicant will undoubtedly be prejudiced unheard.
Omar Awadh Mbarak in the supporting affidavit states that he is the son to the Plaintiff Zubeida Said Abdalla the plaintiff herein who died on 25th October 2023. He is the duly appointed legal representative of her estate pursuant to a Grant of Letters of Administration ad litem issued on 13th February 2026. That prior to her demise, the deceased was gravely ill, bedridden and unable to attend court or effectively participate in the proceedings relating to this suit. That unbeknown to her and to the family, the matter proceeded ex parte and judgment was delivered on 6th December 2023.
The applicant contends that at the time the matter proceeded and judgment was delivered, the Plaintiff had already passed away and no substitution had been effected. That given that judgment still stands and they are instructing a new advocate to come on record after judgment it is important that leave be granted by this Honourable court.
The applicant argues that the proceedings conducted and the judgment delivered against a deceased person were un-procedural and irregular as a deceased person lacks legal capacity and cannot participate in proceedings. That by operation of Order 24 Rule 3(2) of the Civil Procedure Rules, the suit abated one year after the death of the Plaintiff as no substitution had been made within the prescribed time. That the cause of action herein survives the deceased and concerns proprietary rights over land which form part of her estate. This Honourablc Court has jurisdiction under Order 24 Rule 7(2) of the Civil Procedure Rules to revive an abated suit upon sufficient cause being shown. The applicant argues that the failure to substitute the deceased within one year was not deliberate but was occasioned by her illness, subsequent demise and the time required to obtain representation from the Probate Court.
According to the applicant, this Honourable Court has wide and unfettered discretion under Order 12 Rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act to set aside ex parte proceedings and judgment in order to avoid injustice and that unless the orders sought are granted, the estate of the deceased will suffer grave prejudice as it will have been condemned unheard contrary to Article 50 of the Constitution.
Respondents Reply
In reply, Zahra Masika Mohamed Soud, the administratrix of the Estate of the Mohamed Soud Sheikh (Deceased) pursuant to Kadhi's Court Judgment dated 6th March, 2025 in Kadhi's Court Succession Cause Number KCSUCC E004/2025: who died on 19th of November, 2024 at Badiria-Kongowea, in Mombasa states that her father, now deceased, was the lawful proprietor of all suit property MN/ 1/341 Situate in Utange, Bamburi in Mombasa County in the Republic of Kenya having acquired the same 15th of January, 1966 from Abdallah Mohamed.
That from the said date of acquisition to his unfortunate demise, they were resident, living in and residing in the suit property and neither was it ever sold, transferred to the Intended 2nd Defendant. That sometimes on or around April, 2013 their father, Mohamed Soud Sheikh was sued as the Defendant in this suit by the Plaintiff. The deceased appointed their counsel, Mr Aboubakar, who is still on record to date in this suit.
That simultaneous with this suit, the Plaintiff proceeded and lodged a complaint with the Police claiming his father, his siblings and himself were trespassers on her property, the suit property herein, the said case being Criminal Case No. 842 of 2015 between Shanzu R -v- Zahra Mohamed Masika & 3 Others and which case was dismissed and the Mr. Omar Awadh, the son of the Deceased was present and testified and their case was dismissed under s,'210.
The Plaintiff herein was claiming to have acquired this suit property from their Deceased father, Mohamed Soud Sheikh, and that whereas their father was also known as Mohamed Shee, was in possession of the suit property, they misled this Honourable Court to obtain injunctive orders against him. All these information of which she knew were out-rightly false, misleading, and intended to mislead the Court. In the said complaint, the Plaintiff alleged that he purchased the suit property from their deceased father, Mohamed Soud Sheikh, who, then she alleged had died prior to the institution of this suit.
That while this suit was proceeding, their advocate owing to procedural lapses erroneously mis-diarized this suit and as a result of this mis-diarizing, the suit proceeded in his absence irregularly and an irregular ex parte judgment was rendered by this Honourable Court but the same was set aside entirely on the 21st of April, 2016. That in the subsistence of the said stay orders, the Plaintiff proceeded and obtained fraudulent eviction orders, and on or around the 8th of July, 2014 proceeded to demolish their storey house which was their home.
That having demolished their home, and the court having allowed the case to be reopened to enable them to defend this suit, the Plaintiff fraudulently proceeded to subdivide the suit property notwithstanding the pendency of this case. She then disappeared and has never again showed up in court to explain the reason for demolishing their house despite having been ordered not to demolish by this Court notwithstanding the orders, summons, and warrants for her arrest.
That on several other days his Counsel and the deponent were present in Court with his father, the Plaintiff, Zubeida Abdalla never ever showed up in Court despite court orders, court summons and court warrants to show up for purposes of cross-examination as had been ordered by the Court on the 21st April, 2016,
On the 21st of April, 2016, this Honourable Court set aside the ex parte judgment of 21st February, 2014 and expressly ordered thus that the Plaintiff to be recalled for purposes of cross-examination and the o Defendant shall be at liberty to present his case.
Upon conclusion of this case and in bid to register the decree of the Court, they came to know that the Plaintiff had sub-divided the suit property in 2014, sold a portion thereof being MN/ 111/20800, to the Intended 2nd Defendant all these during the pendency of this case and the subdivision was registered on the 28th of May, 2014 but the transfer to the Applicant herein was never reflected on the Land Register as available at the time of registration of the decree of this Court. At the start of this suit, the suit property was on land and the title deed was one, the subdivision MN/ 1/20800 that was fraudulently purchased by the Intended 2nd Defendant did not exist and only came to existence as a result of violation, breach, and wanton disregard of this Court process by the Plaintiff in this suit.
The deponent contends that therefore, there cannot arise an instance where the Plaintiff in violation of Court order dispose the suit property to the Intended 2nd Defendant and the very Intended 2nd Defendant seek or purport to claim a right to heard or to be notified or be heard and such claim post judgment point to concerted effort by the Plaintiff to create a situation of never ending litigation by manufacturing new parties to a suit by sale or disposition of portions of the suit land.
That the Plaintiff has deliberately refused to be heard and have her testimony tested by cross examination and the Court had to ultimately dismiss it. That from the historical pattern above shown, the Applicant cannot feign ignorance that it was not aware of ongoing suit and has all along pretended, or colluded and or in connivance kept themselves out of the suit in bid to now, years after the determination of the suit seek to be heard or re-open closed suit yet had she done due diligence, she could have known of the pendency of this suit prior to her purchase thereof. That on 28/02/2019 the Plaintiff equally failed to show up to be heard in evidence but her Counsel appeared with contradictory documentation to explain the Plaintiffs absence out of the Country.
That out of the frustration by the Plaintiffs refusal to testify in cross examination, this Court issued arrest warrants to have the Plaintiff avail or be availed in Court in the next court date. That on 7/08/2020 the Plaintiff did not appear as directed and this Court o ordered that the Plaintiff do swear an affidavit to show when she is ready to appear in Court in compliance with this Court's summons of 20/06/2014 and in default of which she be denied audience before the Court and her Application dated 19/06/2019 be struck out.
That on 21/09/2020 the Plaintiff swore an Affidavit and explained the summons. That on the 28th of February, 2019 the Plaintiff did not appear as directed and ordered by the Court but her advocates presented some medical documents in the name of one Zubeida A. A Mbarak and a copy of passport in the name of Zubeida Awadh Mbarak and the Plaintiff’s Counsel sought adjournment claiming that the Plaintiff was unwell. The Plaintiffs suit was dismissed and not closed as alleged by the Applicant and as such, it was heard on merit and finally dismissed. That as the record of the Court confirms, the last hearing of the suit was undertaken on the 11th of May, 2023. The Plaintiff was alive and represented by Counsel, Kyalo holding brief for Shimaka who had been appearing for the Plaintiff for considerable time, that from the Supporting Affidavit herein, it is confirmed that the Deceased passed on 25/10/2023 which was one month two weeks before the delivery of the Judgment and which death does not render the Judgment liable to be set aside but be appealed as appropriately and duly done by the Plaintiff through the Notice of Appeal dated 15th December, 2023. That there being no suit that abated, this Court does not have jurisdiction to hear any application post judgment on merit that seeks to vary and or vary the substance of the judgment as both parties were accorded an opportunity to be heard but the Plaintiff deliberately and vehemently refused, rejected to be heard.
APPLICANT'S WRITTEN SUBMISSIONS
The applicant submits that the application principally seeks orders for revival of the suit, substitution of the deceased Plaintiff with her legal representative, setting aside of the ex parte proceedings and judgment delivered on 6th December 2023 and reopening of the suit for hearing and determination on merit. The Application is supported by the affidavit of Omar Awadh Mbarak sworn on 27th February 2026 wherein he depones that the Plaintiff died on 25th October 2023 while the suit was pending before court and before delivery of judgment.
The Applicant further avers that prior to her demise the deceased had been gravely ill, bedridden and incapable of participating in the proceedings and that unbeknownst to the family, the matter proceeded ex parte culminating in a judgment delivered against a deceased person on 6th December 2023. The Respondent has opposed the Application through a Replying Affidavit. Nevertheless, the issues raised therein do not dislodge the fundamental procedural and legal defects attending the proceedings and judgment herein.
On whether the suit should be revived and the legal representative substituted. The applicant submits that. It is not disputed that the Plaintiff died on 25th October 2023. It is equally not disputed that no substitution was effected within one year from the date of death and consequently the suit abated by operation of law pursuant to Order 24 Rule 3(2) of the Civil Procedure Rules. Order 24 Rule 7(2) expressly grants this Honourable Court jurisdiction to revive an abated suit where sufficient cause is shown. The Rule provides that:
"The plaintiff for the person claiming to be the legal representative of a deceased plaintiff... may apply for an order to revive a suit which has abated and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit...
The Applicant submits that he has satisfactorily explained the circumstances leading to the delay in substitution. The deceased had been gravely ill and bedridden prior to her death and the family only later obtained a Grant of Letters of Administration ad litem on 13th February 2026 for purposes of prosecuting the suit. The Court of Appeal in Said Sweilem Gheithan Saanum v Commissioner of Lands & 5 Others held that:
"revival of an abated suit is a discretionary remedy intended to facilitate substantive justice where sufficient cause has been demonstrated. "
Similarly, in Habo Agencies Limited v Wilfred Odhiambo Musingo the Court held that
"procedural lapses ought not to impede substantive justice where a plausible explanation has been given. "
The Applicant has demonstrated sufficient cause and has further shown diligence by obtaining a Grant ad litem specifically for purposes of prosecuting this matter. The cause of action concerns proprietary interests in land and undoubtedly survives the deceased. This Honourable Court is therefore properly clothed with jurisdiction to revive the suit and substitute the deceased Plaintiff with Omar Awadh Mbarak as legal representative of the estate.
On whether the proceedings and judgment conducted after the death of the plaintiff are liable to be set aside, this is the central issue in the present Application. The applicant argues that the Plaintiff died on 25th October 2023 yet the matter proceeded thereafter and judgment was delivered on 6th December 2023 against a deceased litigant. The law is settled that proceedings conducted against a deceased person are a nullity since a deceased person lacks legal capacity and cannot participate in legal proceedings. Once a party dies, proceedings cannot lawfully continue unless and until substitution is effected in accordance with Order 24 of the Civil Procedure Rules. The proceedings herein therefore suffered from a fundamental jurisdictional and procedural defect. In Shah v Mbogo the Court held that:
"the discretion to set aside proceedings exists to avoid injustice or hardship resulting from accident, inadvertence or excusable circumstances.
Likewise, in Patel v E.A. Cargo Handling Services Ltd the Court emphasized that the primary concern of the court is to do justice between the parties and avoid shutting out a litigant from being heard on merit. In the present matter, the prejudice occasioned is immense. A litigant who had already died was condemned unheard and judgment entered affecting proprietary rights forming part of her estate. The Applicant submits that no court of law should allow a judgment obtained in such circumstances to stand.
Indeed, courts have consistently held that proceedings conducted against deceased persons are void for want of legal capacity.
The Respondent cannot legitimately claim prejudice because the dispute will merely be heard on merit with participation of the lawful representative of the estate.
On the other hand, refusal to set aside the judgment would occasion grave injustice and would amount to sanctioning proceedings undertaken contrary to law and fundamental procedural fairness.
Whether the suit should be reopened for hearing on merit
Article 50(1) of the Constitution guarantees every person the right to a fair hearing.
The deceased Plaintiff was denied the opportunity to fully ventilate her case owing to illness, subsequent demise and the continuation of proceedings in her absence.
This Honourable Court is enjoined under Sections IA and 1B of the Civil Procedure Act to facilitate the just, expeditious and proportionate determination of disputes. Further, Section 3A of the Civil Procedure Act preserves the inherent jurisdiction of the Court to make such orders as may be necessary for the ends of justice.
Land disputes touch on fundamental proprietary rights and ought, wherever possible, to be determined on merit rather than on procedural technicalities. The Applicant submits that he has demonstrated good faith throughout the Application and has placed before court all relevant material including the death certificate and Grant ad litem. No prejudice incapable of compensation by costs shall be occasioned to the Respondent if the suit is reopened. The balance of justice overwhelmingly tilts in favour of allowing parties to fully ventilate the dispute on merit. In conclusion, the applicant has argues that he has demonstrated sufficient cause for revival of the suit and substitution of the deceased Plaintiff. The Applicant has further demonstrated that the proceedings and judgment delivered after the death of the Plaintiff were fundamentally irregular and un-procedural, having been conducted against a deceased person lacking legal capacity.
The gravamen of the defendant’s submissions is that there is no suit that abated or can be said to have abated justifying revival on the grounds. The Plaintiff, now deceased was heard her evidence taken on the 17th September, 2013 before this Honourable Court, presided over by Mukunya, J (as he then was). This is best demonstrated by the Court's record and the ex parte judgment of this Honourable Court dated the 21st February, 2014 at page 3 thereof, the judge held states thus " The Plaintiff gave evidence and case was closed and judgment was set for the delivery on 18th November, 2013... and that ex parte judgment was ultimately set aside on 21st April, 2016. That upon that judgment being set aside, this Honourable Court ordered the Plaintiff (now deceased) to avail herself to be cross-examined by the Defendant's Counsel, but the Plaintiff went on escapades to avoid attending Court notwithstanding extensive consideration by this Honourable Court to compel and assuage her to appear in Court to the extent that this Honourable Court issued warrants of arrest for the Plaintiff's contempt of Court. This Honourable Court on the 28th of February, 2019 the Plaintiff did not appear as directed and ordered by the Court but her advocates presented some medical documents in the name of one Zubeida A. A Mbarak and a copy of passport in the name of Zubeida Awadh Mbarak Awadh and the Plaintiff's Counsel sought adjournment claiming that the Plaintiff was unwell and this Honourable Court declined to grant the Application made and dismissed the Plaintiff's case and issued summons for the Plaintiff to appear in Court to show cause why she proceeded to execute the ex parte judgment against the Court order staying execution thereof. That the Plaintiff's suit was dismissed and not closed as alleged by the Applicant and as such, it was heard on merit and finally dismissed.
The defendant submits that as the record of this Court confirms, the last hearing of the suit was undertaken on the 11th of May, 2023. The Plaintiff was alive and represented by Counsel, Kyalo holding brief for Shimaka who had been appearing for the Plaintiff for considerable time, that from the Supporting Affidavit herein, it is confirmed that the Deceased passed on 25/10/2023 which was one month two weeks before the delivery of the Judgment and which death does not render the Judgment liable to be set aside but be appealed as appropriately and duly done by the Plaintiff through the Notice of Appeal dated 15th December, 2023.
That the Applicant has not availed any evidence and or just reason, explanation to justify revival of a suit that has abated. The Applicant was well aware, informed and at all material times relevant to this suit, was actively involved, but stayed unbothered until the suit, arguendo, abated.
The Court of Appeal in Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 others [20151 KECA 284 (KLR) had this to say on threshold to justify an application for revival:
"There are three stages according to these provisions. As a general rule the death of a plaintiff does not cause the suit to abate if the cause of action survives. But within one year of the death of the plaintiff or within such time as the court may in its discretion for "good reason" determine, an application must be made for the legal representative of the deceased plaintiff to be made a party. The "good reason" therefore relates to application or extension of time to join the plaintiff’s legal presentative to the suit.
Secondly, if no such application is made within one year or within the time extended by leave of the court, the suit shall abate. Where a suit abates no fresh suit can be brought on the same cause of action.
Thirdly, the legal representative of the deceased plaintiff may apply for the abated suit to be revived after satisfying the court he was prevented by "sufficient cause" from continuing with the suit. The effect of an abated suit is that it ceases to exist in the eye of the law. The abatement takes place on its own force by passage of time, a legal consequence which flows from the z omission to take the necessary steps within one year to implead the legal representative of the deceased plaintiff." (Emphasis added).
The defendant cites the dictum in Eunice Kirunda Kinyua v JosephatMwathi Kibiri [20181 KEI-IC 3858 (KLR) in a case strikingly at par with this where the Defendant one month prior to date of delivery of judgment, this Court held as follows:
"16. In the present case, both parties were alive and well up till the court concluded the hearing and reserved the judgment to a future date. The defendant died a few weeks before the judgment was delivered. It is my view that under Order 24 Rule 1 the suit did not abate as the cause of action
continued. What remained was execution which could be effected against the estate of the deceased. This is especially so because the judgment was delivered well within the one year period prescribed by order 24 rule 2.
The defendant submits that the Applicant has established that in fact, this suit did not abate, neither did the cause of action as of the 6th of December, 2023. Further, that the parties actively participated in this suit right from inception to date when the Plaintiff abandoned her suit and the once this Court set down the counterclaim for hearing, the Plaintiff actively participated in the hearing slated on the 11th of May, 2023 wherein this Court reserved the date for judgment. And further, at the date of judgment, the suit and the cause of action had not abated and the Plaintiff was represented by her Counsel who thereafter filed a Notice of Appeal dated the 15th of December, 2023,
Therefore, this is a suit that proceeded to its logical conclusion where both parties participated, were heard on merits, and the judgment was not appealed despite the Applicant expressing intention to appeal but did not lodge the Appeal in the Court of Appeal, challenged, and or reviewed. As such, this Application on this ground alone, should be dismissed and with costs.
On whether there were any ex parte proceedings in this suit and whether the judgment delivered by this court on the 6th of December is an ex parte judgment, the defendant submits that the Plaintiff was heard on the 17th of September, 2013 and the proceedings were conducted ex parte. As such, she was not cross-examined. Since the Defendant was not present, the Plaintiff closed their case and the matter proceeded for judgment, which was delivered on the 21st of February, 2014. The Defendant/ Respondent made an Application to set aside that ex parte judgment on the 3st of March, 2014. This Honourable Court did set aside the ex parte judgment on the 21st of April, 2016 and ordered the Plaintiff/ Applicant to appear for cross-examination. Plaintiff/ Applicant deliberately absconded and never showed up in Court. On the 4th of December, 2018, the Court ordered that the Plaintiff must avail herself on the 28th of February, 2019 for cross-examination. On the 28th of February, 2019, the Plaintiff did not appear and her suit was dismissed therewith and the Defendant/ Respondent's counterclaim was set down for hearing. On the 19th of June, 2019, the Applicant herein (Omar Awadh Mbarak) approached this Court to allow him to be allowed to testify on behalf of her mother who she alleged was sick. This Court through a Ruling dated the 15 th of November, 2022 dismissed the said Application and set down the counterclaim for hearing. The record of the Court confirms, the last hearing of the suit was undertaken on the 11th of May, 2023. The Plaintiff was alive and represented by Counsel, Kyalo holding brief for Shimaka who had been appearing for the Plaintiff for considerable time, and proceeded to cross-examine the Defendant (now deceased).
It is the Respondent's submission that there were no ex parte proceedings in respect to this suit except the proceedings of the 17th of September, 2013 which were asset aside by this Honourable Court on the 21st April, 2016. Thereafter, all proceedings have been undertaken in the presence and with notice to all parties. Notwithstanding the considerable latitude accorded to the Plaintiffs, they vehemently refused and or failed to prosecute their suit which was ultimately dismissed by this Court. As for the Counterclaim, the Plaintiff actively participated notwithstanding having not filed any defence from 2013. However, this Court allowed the Plaintiff's Counsel to cross examine and text the evidence of the Defendant (deceased) in the hearing that took place on the 11th of May, 2023. As such, the defendant submits that the proceedings that culminated in the judgment of the 6th of December, 2023 were on merit and were not ex parte.
That the prayer by the Applicant seeking setting aside of the ex parte proceedings and ex parte judgment of 6th of December, 2023 is not only misguided, but is fundamentally misconceived. The same must be dismissed with costs.
On whether the suit should be re-opened for purposes of re-hearing and determination the defendant submits that this Court heard the Plaintiff on the 17th of September, 2013 and thereafter recalled the Plaintiff to be cross-examined on the 21st of April, 2016. The Plaintiff failed, refused and or rejected and violated the summons of this Honourable Court duly communicated through his Counsel on the 4th of December, 2018, and on the 28 th of February, 2019, and on the 7th of August, 2020. And in such other diverse dates where evidently, the Plaintiff refused to testify in cross-examination, the Plaintiff still failed and refused to attend Court. On 19th June, 2019, the Applicant herein armed with power of attorney of the Plaintiff moved this Court to be allowed to testify on the Plaintiff's behalf and this Court upon comprehensively hearing the Application, dismissed the Application in 2022. For a period of ten (10) years, the Plaintiff was heard and she disappeared and the Court has accorded her considerable opportunity to be heard and she had demonstrated the unwillingness to abide by this orders. This Court then proceeded to hear the counterclaim by the Defendant. The Plaintiff proceeded and was heard in the counterclaim on the 11 th of May, 2023. His Counsel was accorded an opportunity to test the veracity or otherwise of the Defendant's in cross examination.
From these backdrop the defendant submits that both parties herein were heard and judgment reserved. Unfortunately, the Plaintiff died on the 25th of o October, 2023 a few weeks befor
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The applicant seeks orders that the court does grant leave to the firm of Musa Boaz & Thomas Advocates to come on record in place of Marende Necheza Advocates. This order has been granted. The applicant further seeks an order that that the suit which abated upon the death of the Plaintiff on 25th October 2023 be revived and that Omar Awadh Mbarak, being the legal representative of the deceased Plaintiff pursuant to the Grant of Letters of Administration ad litem issued on 13th February 2026, be substituted in place of the deceased Plaintiff. The ex parte proceedings and the judgment delivered on 6th December 2023 be set aside. The suit be reopened for hearing and determination on merit. Costs of this application be in the cause
The application is based on the grounds as set out in the application and on the affidavit of Omar Awadh Mbarak. The grounds of the application are that the Plaintiff herein died on 25th October 2023 while the suit was pending before this Honourable Court and prior to delivery of judgment. Before her death, the Plaintiff had been gravely ill and bedridden and was therefore unable to attend court or effectively participate in the proceedings. Unbeknown to her and her family, the matter proceeded ex parte and judgment was subsequently delivered on 6th December 2023.
That by operation of Order 24 Rule 3(2) of the Civil Procedure Rules, the suit abated upon lapse of one year from the date of death as no substitution had been effected within that period. The Applicant has since obtained a Grant of Letters of Administration ad litem on 13th February 2026 for purposes of prosecuting this suit on behalf of the estate.
The proceedings culminating in the judgment were undertaken against a deceased person, rendering the same un-procedural and a nullity in law, as a court cannot lawfully proceed against a party who lacks legal capacity. The cause of action herein survives the deceased and it is in the interest of substantive justice that the suit be revived, the legal representative substituted, and the matter reopened for hearing on merit so that the estate is not condemned unheard.
The applicant believes that the Defendant will not suffer prejudice that cannot be compensated by costs, whereas the estate of the deceased stands to suffer grave and irreparable prejudice if the orders sought are not granted and that unless this matter is heard urgently and orders sought herein granted the Applicant shall suffer irreparable harm based on an outright procedural impropriety and illegality. That unless this Honourable Court pronounces itself on this matter and allows the application hereof the Applicant will undoubtedly be prejudiced unheard.
Omar Awadh Mbarak in the supporting affidavit states that he is the son to the Plaintiff Zubeida Said Abdalla the plaintiff herein who died on 25th October 2023. He is the duly appointed legal representative of her estate pursuant to a Grant of Letters of Administration ad litem issued on 13th February 2026. That prior to her demise, the deceased was gravely ill, bedridden and unable to attend court or effectively participate in the proceedings relating to this suit. That unbeknown to her and to the family, the matter proceeded ex parte and judgment was delivered on 6th December 2023.
The applicant contends that at the time the matter proceeded and judgment was delivered, the Plaintiff had already passed away and no substitution had been effected. That given that judgment still stands and they are instructing a new advocate to come on record after judgment it is important that leave be granted by this Honourable court.
The applicant argues that the proceedings conducted and the judgment delivered against a deceased person were un-procedural and irregular as a deceased person lacks legal capacity and cannot participate in proceedings. That by operation of Order 24 Rule 3(2) of the Civil Procedure Rules, the suit abated one year after the death of the Plaintiff as no substitution had been made within the prescribed time. That the cause of action herein survives the deceased and concerns proprietary rights over land which form part of her estate. This Honourablc Court has jurisdiction under Order 24 Rule 7(2) of the Civil Procedure Rules to revive an abated suit upon sufficient cause being shown. The applicant argues that the failure to substitute the deceased within one year was not deliberate but was occasioned by her illness, subsequent demise and the time required to obtain representation from the Probate Court.
According to the applicant, this Honourable Court has wide and unfettered discretion under Order 12 Rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act to set aside ex parte proceedings and judgment in order to avoid injustice and that unless the orders sought are granted, the estate of the deceased will suffer grave prejudice as it will have been condemned unheard contrary to Article 50 of the Constitution.
Respondents Reply
In reply, Zahra Masika Mohamed Soud, the administratrix of the Estate of the Mohamed Soud Sheikh (Deceased) pursuant to Kadhi's Court Judgment dated 6th March, 2025 in Kadhi's Court Succession Cause Number KCSUCC E004/2025: who died on 19th of November, 2024 at Badiria-Kongowea, in Mombasa states that her father, now deceased, was the lawful proprietor of all suit property MN/ 1/341 Situate in Utange, Bamburi in Mombasa County in the Republic of Kenya having acquired the same 15th of January, 1966 from Abdallah Mohamed.
That from the said date of acquisition to his unfortunate demise, they were resident, living in and residing in the suit property and neither was it ever sold, transferred to the Intended 2nd Defendant. That sometimes on or around April, 2013 their father, Mohamed Soud Sheikh was sued as the Defendant in this suit by the Plaintiff. The deceased appointed their counsel, Mr Aboubakar, who is still on record to date in this suit.
That simultaneous with this suit, the Plaintiff proceeded and lodged a complaint with the Police claiming his father, his siblings and himself were trespassers on her property, the suit property herein, the said case being Criminal Case No. 842 of 2015 between Shanzu R -v- Zahra Mohamed Masika & 3 Others and which case was dismissed and the Mr. Omar Awadh, the son of the Deceased was present and testified and their case was dismissed under s,'210.
The Plaintiff herein was claiming to have acquired this suit property from their Deceased father, Mohamed Soud Sheikh, and that whereas their father was also known as Mohamed Shee, was in possession of the suit property, they misled this Honourable Court to obtain injunctive orders against him. All these information of which she knew were out-rightly false, misleading, and intended to mislead the Court. In the said complaint, the Plaintiff alleged that he purchased the suit property from their deceased father, Mohamed Soud Sheikh, who, then she alleged had died prior to the institution of this suit.
That while this suit was proceeding, their advocate owing to procedural lapses erroneously mis-diarized this suit and as a result of this mis-diarizing, the suit proceeded in his absence irregularly and an irregular ex parte judgment was rendered by this Honourable Court but the same was set aside entirely on the 21st of April, 2016. That in the subsistence of the said stay orders, the Plaintiff proceeded and obtained fraudulent eviction orders, and on or around the 8th of July, 2014 proceeded to demolish their storey house which was their home.
That having demolished their home, and the court having allowed the case to be reopened to enable them to defend this suit, the Plaintiff fraudulently proceeded to subdivide the suit property notwithstanding the pendency of this case. She then disappeared and has never again showed up in court to explain the reason for demolishing their house despite having been ordered not to demolish by this Court notwithstanding the orders, summons, and warrants for her arrest.
That on several other days his Counsel and the deponent were present in Court with his father, the Plaintiff, Zubeida Abdalla never ever showed up in Court despite court orders, court summons and court warrants to show up for purposes of cross-examination as had been ordered by the Court on the 21st April, 2016,
On the 21st of April, 2016, this Honourable Court set aside the ex parte judgment of 21st February, 2014 and expressly ordered thus that the Plaintiff to be recalled for purposes of cross-examination and the o Defendant shall be at liberty to present his case.
Upon conclusion of this case and in bid to register the decree of the Court, they came to know that the Plaintiff had sub-divided the suit property in 2014, sold a portion thereof being MN/ 111/20800, to the Intended 2nd Defendant all these during the pendency of this case and the subdivision was registered on the 28th of May, 2014 but the transfer to the Applicant herein was never reflected on the Land Register as available at the time of registration of the decree of this Court. At the start of this suit, the suit property was on land and the title deed was one, the subdivision MN/ 1/20800 that was fraudulently purchased by the Intended 2nd Defendant did not exist and only came to existence as a result of violation, breach, and wanton disregard of this Court process by the Plaintiff in this suit.
The deponent contends that therefore, there cannot arise an instance where the Plaintiff in violation of Court order dispose the suit property to the Intended 2nd Defendant and the very Intended 2nd Defendant seek or purport to claim a right to heard or to be notified or be heard and such claim post judgment point to concerted effort by the Plaintiff to create a situation of never ending litigation by manufacturing new parties to a suit by sale or disposition of portions of the suit land.
That the Plaintiff has deliberately refused to be heard and have her testimony tested by cross examination and the Court had to ultimately dismiss it. That from the historical pattern above shown, the Applicant cannot feign ignorance that it was not aware of ongoing suit and has all along pretended, or colluded and or in connivance kept themselves out of the suit in bid to now, years after the determination of the suit seek to be heard or re-open closed suit yet had she done due diligence, she could have known of the pendency of this suit prior to her purchase thereof. That on 28/02/2019 the Plaintiff equally failed to show up to be heard in evidence but her Counsel appeared with contradictory documentation to explain the Plaintiffs absence out of the Country.
That out of the frustration by the Plaintiffs refusal to testify in cross examination, this Court issued arrest warrants to have the Plaintiff avail or be availed in Court in the next court date. That on 7/08/2020 the Plaintiff did not appear as directed and this Court o ordered that the Plaintiff do swear an affidavit to show when she is ready to appear in Court in compliance with this Court's summons of 20/06/2014 and in default of which she be denied audience before the Court and her Application dated 19/06/2019 be struck out.
That on 21/09/2020 the Plaintiff swore an Affidavit and explained the summons. That on the 28th of February, 2019 the Plaintiff did not appear as directed and ordered by the Court but her advocates presented some medical documents in the name of one Zubeida A. A Mbarak and a copy of passport in the name of Zubeida Awadh Mbarak and the Plaintiff’s Counsel sought adjournment claiming that the Plaintiff was unwell. The Plaintiffs suit was dismissed and not closed as alleged by the Applicant and as such, it was heard on merit and finally dismissed. That as the record of the Court confirms, the last hearing of the suit was undertaken on the 11th of May, 2023. The Plaintiff was alive and represented by Counsel, Kyalo holding brief for Shimaka who had been appearing for the Plaintiff for considerable time, that from the Supporting Affidavit herein, it is confirmed that the Deceased passed on 25/10/2023 which was one month two weeks before the delivery of the Judgment and which death does not render the Judgment liable to be set aside but be appealed as appropriately and duly done by the Plaintiff through the Notice of Appeal dated 15th December, 2023. That there being no suit that abated, this Court does not have jurisdiction to hear any application post judgment on merit that seeks to vary and or vary the substance of the judgment as both parties were accorded an opportunity to be heard but the Plaintiff deliberately and vehemently refused, rejected to be heard.
APPLICANT'S WRITTEN SUBMISSIONS
The applicant submits that the application principally seeks orders for revival of the suit, substitution of the deceased Plaintiff with her legal representative, setting aside of the ex parte proceedings and judgment delivered on 6th December 2023 and reopening of the suit for hearing and determination on merit. The Application is supported by the affidavit of Omar Awadh Mbarak sworn on 27th February 2026 wherein he depones that the Plaintiff died on 25th October 2023 while the suit was pending before court and before delivery of judgment.
The Applicant further avers that prior to her demise the deceased had been gravely ill, bedridden and incapable of participating in the proceedings and that unbeknownst to the family, the matter proceeded ex parte culminating in a judgment delivered against a deceased person on 6th December 2023. The Respondent has opposed the Application through a Replying Affidavit. Nevertheless, the issues raised therein do not dislodge the fundamental procedural and legal defects attending the proceedings and judgment herein.
On whether the suit should be revived and the legal representative substituted. The applicant submits that. It is not disputed that the Plaintiff died on 25th October 2023. It is equally not disputed that no substitution was effected within one year from the date of death and consequently the suit abated by operation of law pursuant to Order 24 Rule 3(2) of the Civil Procedure Rules. Order 24 Rule 7(2) expressly grants this Honourable Court jurisdiction to revive an abated suit where sufficient cause is shown. The Rule provides that:
"The plaintiff for the person claiming to be the legal representative of a deceased plaintiff... may apply for an order to revive a suit which has abated and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit...
The Applicant submits that he has satisfactorily explained the circumstances leading to the delay in substitution. The deceased had been gravely ill and bedridden prior to her death and the family only later obtained a Grant of Letters of Administration ad litem on 13th February 2026 for purposes of prosecuting the suit. The Court of Appeal in Said Sweilem Gheithan Saanum v Commissioner of Lands & 5 Others held that:
"revival of an abated suit is a discretionary remedy intended to facilitate substantive justice where sufficient cause has been demonstrated. "
Similarly, in Habo Agencies Limited v Wilfred Odhiambo Musingo the Court held that
"procedural lapses ought not to impede substantive justice where a plausible explanation has been given. "
The Applicant has demonstrated sufficient cause and has further shown diligence by obtaining a Grant ad litem specifically for purposes of prosecuting this matter. The cause of action concerns proprietary interests in land and undoubtedly survives the deceased. This Honourable Court is therefore properly clothed with jurisdiction to revive the suit and substitute the deceased Plaintiff with Omar Awadh Mbarak as legal representative of the estate.
On whether the proceedings and judgment conducted after the death of the plaintiff are liable to be set aside, this is the central issue in the present Application. The applicant argues that the Plaintiff died on 25th October 2023 yet the matter proceeded thereafter and judgment was delivered on 6th December 2023 against a deceased litigant. The law is settled that proceedings conducted against a deceased person are a nullity since a deceased person lacks legal capacity and cannot participate in legal proceedings. Once a party dies, proceedings cannot lawfully continue unless and until substitution is effected in accordance with Order 24 of the Civil Procedure Rules. The proceedings herein therefore suffered from a fundamental jurisdictional and procedural defect. In Shah v Mbogo the Court held that:
"the discretion to set aside proceedings exists to avoid injustice or hardship resulting from accident, inadvertence or excusable circumstances.
Likewise, in Patel v E.A. Cargo Handling Services Ltd the Court emphasized that the primary concern of the court is to do justice between the parties and avoid shutting out a litigant from being heard on merit. In the present matter, the prejudice occasioned is immense. A litigant who had already died was condemned unheard and judgment entered affecting proprietary rights forming part of her estate. The Applicant submits that no court of law should allow a judgment obtained in such circumstances to stand.
Indeed, courts have consistently held that proceedings conducted against deceased persons are void for want of legal capacity.
The Respondent cannot legitimately claim prejudice because the dispute will merely be heard on merit with participation of the lawful representative of the estate.
On the other hand, refusal to set aside the judgment would occasion grave injustice and would amount to sanctioning proceedings undertaken contrary to law and fundamental procedural fairness.
Whether the suit should be reopened for hearing on merit
Article 50(1) of the Constitution guarantees every person the right to a fair hearing.
The deceased Plaintiff was denied the opportunity to fully ventilate her case owing to illness, subsequent demise and the continuation of proceedings in her absence.
This Honourable Court is enjoined under Sections IA and 1B of the Civil Procedure Act to facilitate the just, expeditious and proportionate determination of disputes. Further, Section 3A of the Civil Procedure Act preserves the inherent jurisdiction of the Court to make such orders as may be necessary for the ends of justice.
Land disputes touch on fundamental proprietary rights and ought, wherever possible, to be determined on merit rather than on procedural technicalities. The Applicant submits that he has demonstrated good faith throughout the Application and has placed before court all relevant material including the death certificate and Grant ad litem. No prejudice incapable of compensation by costs shall be occasioned to the Respondent if the suit is reopened. The balance of justice overwhelmingly tilts in favour of allowing parties to fully ventilate the dispute on merit. In conclusion, the applicant has argues that he has demonstrated sufficient cause for revival of the suit and substitution of the deceased Plaintiff. The Applicant has further demonstrated that the proceedings and judgment delivered after the death of the Plaintiff were fundamentally irregular and un-procedural, having been conducted against a deceased person lacking legal capacity.
The gravamen of the defendant’s submissions is that there is no suit that abated or can be said to have abated justifying revival on the grounds. The Plaintiff, now deceased was heard her evidence taken on the 17th September, 2013 before this Honourable Court, presided over by Mukunya, J (as he then was). This is best demonstrated by the Court's record and the ex parte judgment of this Honourable Court dated the 21st February, 2014 at page 3 thereof, the judge held states thus " The Plaintiff gave evidence and case was closed and judgment was set for the delivery on 18th November, 2013... and that ex parte judgment was ultimately set aside on 21st April, 2016. That upon that judgment being set aside, this Honourable Court ordered the Plaintiff (now deceased) to avail herself to be cross-examined by the Defendant's Counsel, but the Plaintiff went on escapades to avoid attending Court notwithstanding extensive consideration by this Honourable Court to compel and assuage her to appear in Court to the extent that this Honourable Court issued warrants of arrest for the Plaintiff's contempt of Court. This Honourable Court on the 28th of February, 2019 the Plaintiff did not appear as directed and ordered by the Court but her advocates presented some medical documents in the name of one Zubeida A. A Mbarak and a copy of passport in the name of Zubeida Awadh Mbarak Awadh and the Plaintiff's Counsel sought adjournment claiming that the Plaintiff was unwell and this Honourable Court declined to grant the Application made and dismissed the Plaintiff's case and issued summons for the Plaintiff to appear in Court to show cause why she proceeded to execute the ex parte judgment against the Court order staying execution thereof. That the Plaintiff's suit was dismissed and not closed as alleged by the Applicant and as such, it was heard on merit and finally dismissed.
The defendant submits that as the record of this Court confirms, the last hearing of the suit was undertaken on the 11th of May, 2023. The Plaintiff was alive and represented by Counsel, Kyalo holding brief for Shimaka who had been appearing for the Plaintiff for considerable time, that from the Supporting Affidavit herein, it is confirmed that the Deceased passed on 25/10/2023 which was one month two weeks before the delivery of the Judgment and which death does not render the Judgment liable to be set aside but be appealed as appropriately and duly done by the Plaintiff through the Notice of Appeal dated 15th December, 2023.
That the Applicant has not availed any evidence and or just reason, explanation to justify revival of a suit that has abated. The Applicant was well aware, informed and at all material times relevant to this suit, was actively involved, but stayed unbothered until the suit, arguendo, abated.
The Court of Appeal in Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 others [20151 KECA 284 (KLR) had this to say on threshold to justify an application for revival:
"There are three stages according to these provisions. As a general rule the death of a plaintiff does not cause the suit to abate if the cause of action survives. But within one year of the death of the plaintiff or within such time as the court may in its discretion for "good reason" determine, an application must be made for the legal representative of the deceased plaintiff to be made a party. The "good reason" therefore relates to application or extension of time to join the plaintiff’s legal presentative to the suit.
Secondly, if no such application is made within one year or within the time extended by leave of the court, the suit shall abate. Where a suit abates no fresh suit can be brought on the same cause of action.
Thirdly, the legal representative of the deceased plaintiff may apply for the abated suit to be revived after satisfying the court he was prevented by "sufficient cause" from continuing with the suit. The effect of an abated suit is that it ceases to exist in the eye of the law. The abatement takes place on its own force by passage of time, a legal consequence which flows from the z omission to take the necessary steps within one year to implead the legal representative of the deceased plaintiff." (Emphasis added).
The defendant cites the dictum in Eunice Kirunda Kinyua v JosephatMwathi Kibiri [20181 KEI-IC 3858 (KLR) in a case strikingly at par with this where the Defendant one month prior to date of delivery of judgment, this Court held as follows:
"16. In the present case, both parties were alive and well up till the court concluded the hearing and reserved the judgment to a future date. The defendant died a few weeks before the judgment was delivered. It is my view that under Order 24 Rule 1 the suit did not abate as the cause of action
continued. What remained was execution which could be effected against the estate of the deceased. This is especially so because the judgment was delivered well within the one year period prescribed by order 24 rule 2.
The defendant submits that the Applicant has established that in fact, this suit did not abate, neither did the cause of action as of the 6th of December, 2023. Further, that the parties actively participated in this suit right from inception to date when the Plaintiff abandoned her suit and the once this Court set down the counterclaim for hearing, the Plaintiff actively participated in the hearing slated on the 11th of May, 2023 wherein this Court reserved the date for judgment. And further, at the date of judgment, the suit and the cause of action had not abated and the Plaintiff was represented by her Counsel who thereafter filed a Notice of Appeal dated the 15th of December, 2023,
Therefore, this is a suit that proceeded to its logical conclusion where both parties participated, were heard on merits, and the judgment was not appealed despite the Applicant expressing intention to appeal but did not lodge the Appeal in the Court of Appeal, challenged, and or reviewed. As such, this Application on this ground alone, should be dismissed and with costs.
On whether there were any ex parte proceedings in this suit and whether the judgment delivered by this court on the 6th of December is an ex parte judgment, the defendant submits that the Plaintiff was heard on the 17th of September, 2013 and the proceedings were conducted ex parte. As such, she was not cross-examined. Since the Defendant was not present, the Plaintiff closed their case and the matter proceeded for judgment, which was delivered on the 21st of February, 2014. The Defendant/ Respondent made an Application to set aside that ex parte judgment on the 3st of March, 2014. This Honourable Court did set aside the ex parte judgment on the 21st of April, 2016 and ordered the Plaintiff/ Applicant to appear for cross-examination. Plaintiff/ Applicant deliberately absconded and never showed up in Court. On the 4th of December, 2018, the Court ordered that the Plaintiff must avail herself on the 28th of February, 2019 for cross-examination. On the 28th of February, 2019, the Plaintiff did not appear and her suit was dismissed therewith and the Defendant/ Respondent's counterclaim was set down for hearing. On the 19th of June, 2019, the Applicant herein (Omar Awadh Mbarak) approached this Court to allow him to be allowed to testify on behalf of her mother who she alleged was sick. This Court through a Ruling dated the 15 th of November, 2022 dismissed the said Application and set down the counterclaim for hearing. The record of the Court confirms, the last hearing of the suit was undertaken on the 11th of May, 2023. The Plaintiff was alive and represented by Counsel, Kyalo holding brief for Shimaka who had been appearing for the Plaintiff for considerable time, and proceeded to cross-examine the Defendant (now deceased).
It is the Respondent's submission that there were no ex parte proceedings in respect to this suit except the proceedings of the 17th of September, 2013 which were asset aside by this Honourable Court on the 21st April, 2016. Thereafter, all proceedings have been undertaken in the presence and with notice to all parties. Notwithstanding the considerable latitude accorded to the Plaintiffs, they vehemently refused and or failed to prosecute their suit which was ultimately dismissed by this Court. As for the Counterclaim, the Plaintiff actively participated notwithstanding having not filed any defence from 2013. However, this Court allowed the Plaintiff's Counsel to cross examine and text the evidence of the Defendant (deceased) in the hearing that took place on the 11th of May, 2023. As such, the defendant submits that the proceedings that culminated in the judgment of the 6th of December, 2023 were on merit and were not ex parte.
That the prayer by the Applicant seeking setting aside of the ex parte proceedings and ex parte judgment of 6th of December, 2023 is not only misguided, but is fundamentally misconceived. The same must be dismissed with costs.
On whether the suit should be re-opened for purposes of re-hearing and determination the defendant submits that this Court heard the Plaintiff on the 17th of September, 2013 and thereafter recalled the Plaintiff to be cross-examined on the 21st of April, 2016. The Plaintiff failed, refused and or rejected and violated the summons of this Honourable Court duly communicated through his Counsel on the 4th of December, 2018, and on the 28 th of February, 2019, and on the 7th of August, 2020. And in such other diverse dates where evidently, the Plaintiff refused to testify in cross-examination, the Plaintiff still failed and refused to attend Court. On 19th June, 2019, the Applicant herein armed with power of attorney of the Plaintiff moved this Court to be allowed to testify on the Plaintiff's behalf and this Court upon comprehensively hearing the Application, dismissed the Application in 2022. For a period of ten (10) years, the Plaintiff was heard and she disappeared and the Court has accorded her considerable opportunity to be heard and she had demonstrated the unwillingness to abide by this orders. This Court then proceeded to hear the counterclaim by the Defendant. The Plaintiff proceeded and was heard in the counterclaim on the 11 th of May, 2023. His Counsel was accorded an opportunity to test the veracity or otherwise of the Defendant's in cross examination.
From these backdrop the defendant submits that both parties herein were heard and judgment reserved. Unfortunately, the Plaintiff died on the 25th of o October, 2023 a few weeks befor
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