Kasyoki (Suing as the Administrator and the Legal Representative of the Estate of the Kasyoki Maliti – Deceased) v Kimuli & another (Environment and Land Case 20 of 2018) [2026] KEELC 4359 (KLR)
The bottom line
#A Kenyan land suit against a deceased defendant died automatically one year after her death, voiding the judgment obtained later against her estate.
What this practically means
#Executive summary
#Key legal issues
#Change of advocate post-judgment
Order 9 Rule 9(a) was complied with as notice was given to the Respondent's advocates; the firm properly came on record.
The court held that Order 9 Rule 9 requires court sanction for a change of advocate after judgment, either by application with notice or by consent. The Applicant's notice of motion itself served notice of the intended change on the Respondent's advocates, satisfying rule 9(a), so leave was properly granted.
Abatement of suit
The suit abated automatically on 2/2/2020, one year after the Defendant's death, as no substitution application was made.
Order 24 Rule 4(3) provides that where no application is made within one year to join the legal representative of a deceased sole defendant, the suit abates. The Defendant died on 3/2/2019 and no substitution application was made, so the suit abated by operation of law on 2/2/2020.
Setting aside post-abatement ex parte judgment
The judgment of 15/12/2021 was irregular and a nullity; the court set it aside ex debito justitiae despite the Respondent's argument that it cannot set aside its own judgment.
The court relied on Order 12 Rule 7 and Order 51 Rule 15, and authorities including CMC Holdings, Kanyiita Nderitu, Isaacs v Robertson and Cause Impact, holding that a judgment obtained after abatement and in breach of natural justice is a nullity set aside as of right, without regard to triable issues or delay.
Legal principles established
#- A suit against a sole defendant abates automatically by operation of law where no application for substitution of the legal representative is made within one year of the defendant's death, and proceedings conducted thereafter are null and void.
- A judgment entered after a suit has abated and without according the deceased's legal representative a hearing is an irregular judgment which the court may set aside ex debito justitiae, as of right.
Court orders
#- 1.Leave granted to the firm of STANLEY NTHIWA & COMPANY ADVOCATES LLP to come on record for the Defendant
- 2.An order that the suit abated on the 3/2/2020 thus the proceedings, resultant judgment and decree are null and void and the file be closed forthwith
- 3.An order setting aside the proceedings and judgment dated 15/12/2021 and all consequential and/or subsequent orders and/or decree
- 4.Costs of the application awarded to the Applicant
- Jurisdiction invoked
- Civil Procedure Act, Section 3A (inherent jurisdiction) and Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kasyoki (Suing as the Administrator and the Legal Representative of the Estate of the Kasyoki Maliti – Deceased) v Kimuli & another (Environment and Land Case 20 of 2018) [2026] KEELC 4359 (KLR)", Case Analysis (2026). ELC NO. 20 OF 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4359/eng@2026-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.