Kitulu & 8 others v Ndolo (Environment and Land Case 931 of 2017) [2025] KEELC 8055 (KLR)
The bottom line
#The court confirmed that a judgment in your favour survives your death — winning parties' estates can execute the decree even without substitution.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suits by Jackson Musyoka Kakunzu and Peter Kaleli Kanyasya had abated
- 2.Whether the judgment of 19th March 2018 together with all consequential orders arising therefrom ought to be vacated as against the two deceased plaintiffs
Key legal issues
#Whether the suits by the two deceased plaintiffs had abated for lack of substitution within one year
The suits had not abated; abatement rules do not apply to execution of an already-passed judgment, and substitution of Jackson Musyoka Kakunzu's estate had in any event been effected
Order 24 Rule 10 excludes Rules 3, 4 and 7 from execution proceedings. Peter Kaleli Kanyasya died after judgment had been delivered, so only execution remained, which can proceed without substitution. For Jackson Musyoka Kakunzu, letters of administration were issued a day after judgment; proceedings had been conducted to the end and substitution of his estate had in fact been done. There were no pending proceedings requiring a legal representative.
Whether the judgment of 19th March 2018 and consequential orders should be vacated
The judgment, affirmed on appeal, and its consequential orders cannot be vacated
Since the suits had not abated and the judgments in favour of the deceased plaintiffs were valid, there was no basis for vacating the judgment of 19th March 2018, which had been upheld by the Court of Appeal on 18th November 2022, or the consequential orders arising from it. Execution of the decree in favour of the estates is therefore regular.
Legal principles established
#- Abatement under Order 24 does not affect proceedings in execution of a decree; execution may proceed after the death of a decree-holder without substitution
Court orders
#- 1.The Applicant's notice of motion dated 20th September 2024 is dismissed
- 2.Costs of the application to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court under the Civil Procedure Act and Rules (Order 24)
Relief refused
#Declaration that the suit has abated as far as Jackson Musyoka Kakunzu and Peter Kaleli Kanyasya are concerned
Abatement does not affect execution proceedings; judgment had already been delivered in favour of both deceased plaintiffs
Vacation of the judgment of 19th March 2018 and all consequential orders
The judgment and consequential orders could not be vacated as the proceedings had concluded and only execution remained
Permanent injunction restraining the Registrar Titles and/or National Land Commission from transferring the suit property
The application was dismissed in its entirety as devoid of merit
Costs
Application dismissed with costs to the Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Order 24 Rule 10 of the Civil Procedure Rules is clear that abatement does not afiect execution proceedings.
From the above analysis, it is clear that the Applicant's application is devoid of merit. It is dismissed with costs to the Respondents.
Under the provisions of Order 24 Rule 10 of the Civil Procedure Rules, it is provided that the substitution or causing the legal representative of the deceased to be made a party to the suit shall not be efiected in the execution of the decree or order
Issues in the judgment
#Inconsistent date of issue of letters of administration for Jackson Musyoka Kakunzu's estate
Inconsistent date of death of Peter Kaleli Kanyasya in the Respondents' submissions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitulu & 8 others v Ndolo (Environment and Land Case 931 of 2017) [2025] KEELC 8055 (KLR)", Case Analysis (2025). Makueni ELC 233 to 241 of 2017 (application dated 20th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8055/eng@2025-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.