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Court of AppealPartially AllowedNot stated in the judgment

Njeru v Njiru & another (Civil Appeal 156 of 2018) [2025] KECA 1247 (KLR)

Court of Appeal
27 June 2025
1,766 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court's judgment against a party who had died without an estate substitution was declared a nullity, forcing the entire land dispute back to a fresh trial.

What this practically means

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Executive summary

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This is an appeal to the Court of Appeal at Nyeri against a judgment of the Environment and Land Court at Embu (Y. Angima, J., 5th July 2018) which dismissed Joyce Muthiga Njeru's claim that her deceased husband's exchange of family land parcel Ngandori/Kiriari/2151 with the 1st respondent was fraudulent, and allowed the 1st respondent's counterclaim ordering her eviction. The appellant raised multiple grounds attacking findings on fraud, ancestral land, the lost title deed gazetted by the deceased, and the Land Control Board proceedings. However, at the hearing counsel for the appellant conceded that the deceased 1st defendant had died before the trial commenced in November 2017 and was never substituted by an estate legal representative. The Court held that under Order 24 Rule 4 of the Civil Procedure Rules the cause of action survived the deceased, who had to be substituted; absent substitution within one year the suit abated, and the continued proceedings and judgment were a nullity barred by law and therefore without jurisdiction. Relying on May Wambugu Njuguna and CKM v ENM, the Court set aside the ELC proceedings and judgment and directed that the dispute be heard afresh by another Judge of the ELC at Embu. On costs, although costs normally follow the event, given the peculiar facts each side was ordered to bear its own costs. The appeal succeeded on the procedural nullity ground without any determination of the substantive fraud and title questions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial proceedings before the ELC were a nullity because the deceased 1st defendant was never substituted after his death
  2. 2.Whether the appellant, as a first appellate court, could re-evaluate the evidence and reach its own conclusions

Key legal issues

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Whether proceedings continued against a deceased defendant without substitution are valid

Holding

The cause of action survived the deceased, who as sole defendant required substitution by his estate's legal representative; failing substitution, the suit abated under Order 24 Rule 4(3) and all proceedings taken were a nullity.

Reasoning

The court applied Order 24 Rule 4 of the Civil Procedure Rules: where a cause of action survives a deceased defendant, the court shall cause the legal representative to be made a party on application; if no application is made within one year, the suit abates. Since the deceased died before trial and was never substituted, the trial court lacked capacity to render a valid judgment. Natural justice required the estate be heard through its legal representative before any decision was rendered against it.

p. 4
02

The proper disposal where trial proceedings are a nullity

Holding

The proceedings and judgment being a nullity without jurisdiction, the court set them aside and directed a fresh hearing before another Judge of the ELC at Embu rather than re-determining the merits itself.

Reasoning

Because the judgment was rendered without jurisdiction, the appellate court could not simply allow or dismiss the appeal on the underlying fraud and title questions; the whole trial was a nullity. The appropriate remedy was to set aside the proceedings and judgment and remit the dispute for a fresh hearing before another judge, preserving the position of the parties.

p. 4
03

Standard of review of the first appellate court

Holding

The court reaffirmed that as a first appellate court it must re-evaluate the evidence on law and fact and reach its own conclusions, with the caution that it did not see or hear the witnesses.

Reasoning

The court invoked the classical statement of appellate duty (Peters v Sunday Post Limited) to frame its review role. It emphasizes that appellate re-evaluation must account for the trial court's advantage of observing witness demeanour. In the event, this duty was overtaken by the nullity finding, since the underlying judgment had no legal existence.

p. 3

Legal principles established

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  • Where a sole defendant dies while a cause of action survives against his estate and no legal representative is substituted within one year, the suit abates and the proceedings taken without substitution are a nullity for want of jurisdiction.
  • The application to substitute a legal representative in place of a deceased defendant may be made by any party to the proceedings or by the legal representative.
  • A first appellate court must re-evaluate the evidence on both law and fact and reach its own conclusions, while bearing in mind it did not see or hear the witnesses.

Court orders

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  1. 1.The proceedings and judgment of the ELC are set aside as a nullity
  2. 2.The dispute shall be heard by another Judge of the ELC at Embu
  3. 3.Each side bears its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court at Embu
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act (not expressly stated in the judgment; the court states 'We are the first appellate court')

Relief refused

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Determination of the merits of the fraud claim and the appeal grounds on their substance

The court disposed of the appeal on the nullity of the proceedings for failure to substitute the deceased, without reaching the merits

p. 4

Costs

Costs follow the event, but given the peculiar facts of this appeal, each side bears its own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The proceedings and the judgment having been a nullity by the operation of the law, and therefore without jurisdiction, we set them aside. We direct that the dispute shall be heard by another Judge of the ELC at Embu.
p. 4Disposition - setting aside null proceedings and remittal
Costs follow the event, but given the peculiar facts of this appeal, we order that each side bears own costs.
p. 4Costs order
The continuance of the suit against the deceased upon his death, and without substitution, was barred by law, and, the proceedings taken were a nullity.
p. 4Effect of failure to substitute a deceased defendant
Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant.
p. 4Order 24 Rule 4(3) Civil Procedure Rules - abatement
It is basic that the rules of natural justice and fair play would require that where a party to a suit dies and the cause of action survives him, his estate has to be heard through the estate's legal representative before a decision is rendered.
p. 4Natural justice and deceased estates (CKM v ENM)
We are the first appellate court. Our duty is to re-evaluate the evidence presented in the trial court, both on points of law and fact, and arrive at our own conclusions.
p. 3First appellate duty (Peters v Sunday Post)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njeru v Njiru & another (Civil Appeal 156 of 2018) [2025] KECA 1247 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1247/eng@2025-06-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.