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ELCAllowedNot stated in judgment

Iraki & another v Ndungu & 2 others (Environment and Land Case 767 of 2017) [2025] KEELC 7934 (KLR)

Environment and Land Court
13 November 2025
MOMOGENI
1,741 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court revived a land suit that had died with the plaintiff, confirming families can still seek justice after a death-related delay.

What this practically means

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Executive summary

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This was a Notice of Motion dated 19/02/2025 by Liza Wairimu Iraki, the widow and administratrix of the Estate of Peter Iraki Mwaura, the deceased 2nd Plaintiff in a land suit before the Environment and Land Court at Thika. The 2nd Plaintiff died on 13/04/2021 before the suit was determined; the suit was struck out on 16/03/2023 for failure to substitute his legal representative. The applicant, armed with a limited grant ad litem issued on 19/03/2023, sought extension of time to substitute, her joinder and substitution as 2nd Plaintiff, revival of the abated suit, and setting aside of the striking-out order. The 2nd Respondent opposed, contending the application was an abuse of process, res judicata, and made after inordinate delay of about four years since death and three years since abatement, with no tenable explanation. The court directed disposal by written submissions. Applying Order 24 Rules 3 and 7(2) of the Civil Procedure Rules, the court held that a suit abates by operation of law where no substitution occurs within one year, but the court retains discretion to revive an abated suit on proof of sufficient cause. It applied the Court of Appeal's formulation of 'sufficient cause' as rational, plausible, logical, convincing, reasonable and truthful, and found the applicant's explanation - that her former advocates failed to advise her on substitution and that she acted promptly on obtaining the grant - sufficient. Relying on the overriding objective in Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution, the court rejected the res judicata objection, noting the earlier ruling had not been shown the ad litem grant and could not act where the suit was non-existent. The court allowed the application, revived the suit, substituted the applicant as 2nd Plaintiff, granted leave to amend pleadings within 21 days, and ordered costs in the cause.

Questions the Court framed

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

  1. 1.Whether the suit that abated after the death of the deceased 2nd Plaintiff should be revived
  2. 2.If so, whether the deceased Plaintiff should be substituted by his legal representative

Key legal issues

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01

Whether the abated suit should be revived and the deceased Plaintiff substituted

Holding

Application allowed; the abated suit was revived and the legal representative substituted, the applicant having shown sufficient cause.

Reasoning

Order 24 Rule 3(2) allows extension of time for good reason; Order 24 Rule 7(2) gives the court discretion to revive an abated suit on proof of sufficient cause. The applicant explained that her former advocates did not advise her on the need for substitution, and upon understanding this she promptly obtained a limited grant ad litem. The deceased had not testified, so no prejudice arose, and the overriding objective and Article 159(2)(d) favour substantive justice over technicalities.

p. 4
02

Whether the application was res judicata having regard to the earlier ruling striking out the suit

Holding

The application was not res judicata because the earlier ruling did not consider the ad litem grant nor revive the suit.

Reasoning

To determine res judicata the court would have to probe the earlier ruling's facts. Justice Kemei's ruling at paragraph 17 showed that the court had not been shown the ad litem grant and had noted that the suit had not been revived or reinstated. Since revival is a prerequisite to extension of time to substitute, the earlier ruling could not bar the present application.

p. 4

Legal principles established

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  • A suit abates by operation of law when no substitution is made within one year of the death of a party, but the court retains discretion to revive an abated suit where sufficient cause is shown.
  • Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful.

Court orders

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  1. 1.The abated suit is revived
  2. 2.The deceased 2nd Plaintiff Peter Iraki Mwaura is substituted by his legal representative Liza Wairimu Iraki
  3. 3.Applicant granted leave to amend the pleadings accordingly, if need be, and to file and serve the same within 21 days from the date of the Ruling
  4. 4.Costs of the application shall be in the cause

The bench

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

MO
majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3A Civil Procedure Act; Order 24 Rules 3(2) and 7(2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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 abated suit is herein revived, the Deceased 2nd Plaintifi Peter Iraki Mwaura is herein substituted by his legal representative Liza Wairimu Iraki the Applicant herein so as to enable the Court to determine the real issues in controversy between the parties.
p. 4Final orders - revival and substitution
That Applicant be and is hereby granted leave to amend the pleadings accordingly, if need be and shall thereafter file and serve the same 21 days from the date of this Ruling.
p. 4Final orders - leave to amend
Costs of the application shall be in the cause.
p. 4Costs
These Constitution provisions when mirrored against Sections 1A and 1B of the Civil Procedure Act, clearly enjoin the Courts to endeavor to do substantive justice to the parties without necessarily being shackled by procedural technicalities.
p. 3Overriding objective and Article 159(2)(d)

Issues in the judgment

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minor

Affidavit date appears misdated as '19/02/29025'

minor

Ruling dated and delivered in 2025 while the application was filed February 2025 and submissions May/June 2025 - delay of several months to delivery not explained; also application described as seeking reinstatement of a suit struck out on 16/03/2023 though cause stated as abatement

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, "Iraki & another v Ndungu & 2 others (Environment and Land Case 767 of 2017) [2025] KEELC 7934 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7934/eng@2025-11-13

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