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ELCAllowedELC NO. 20 OF 2018

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)

Environment and Land Court
14 July 2026
2,939 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicant, personal representative of the Estate of Mary Kimuli Ngao (the deceased Defendant), moved the court by notice of motion dated 10th March 2025 seeking leave for Stanley Nthiwa & Co. Advocates LLP to come on record, setting aside of the ex parte judgment of 15/12/2021 and all consequential orders, and a declaration that the suit abated on 3/2/2020. The Respondent opposed, arguing that the court cannot set aside its own final judgment and that a declaration cannot issue in an application. The court framed three issues: whether the firm properly came on record; whether the suit abated; and whether the judgment should be set aside. Applying Order 9 Rule 9(a), it found the incoming firm had complied by notice. Applying Order 24 Rule 4, it found that no substitution application was made within one year of the Defendant's death on 3/2/2019, so the suit automatically abated on 2/2/2020. Relying on CMC Holdings, James Kanyiita Nderitu, Isaacs v Robertson and Cause Impact, the court held that proceedings and judgment entered after abatement violated natural justice against the deceased's estate and were null and void, to be set aside ex debito justitiae as of right, without inquiry into delay or triable issues. The court refused to countenance execution of the irregular judgment. The application was allowed in full: leave granted, suit declared abated, judgment and decree set aside, file closed, and costs awarded to the Applicant.

Questions the Court framed

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

  1. 1.Whether the firm of Stanley Nthiwa & Co. Advocates LLP has properly applied to come on record for the Defendant
  2. 2.Whether the suit herein abated on 3/2/2020
  3. 3.Whether the subsequent proceedings and ex-parte judgment dated 15/12/2021 ought to be set aside

Key legal issues

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01

Change of advocate post-judgment

Holding

Order 9 Rule 9(a) was complied with as notice was given to the Respondent's advocates; the firm properly came on record.

Reasoning

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.

p. 5
02

Abatement of suit

Holding

The suit abated automatically on 2/2/2020, one year after the Defendant's death, as no substitution application was made.

Reasoning

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.

p. 6
03

Setting aside post-abatement ex parte judgment

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Leave granted to the firm of STANLEY NTHIWA & COMPANY ADVOCATES LLP to come on record for the Defendant
  2. 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. 3.An order setting aside the proceedings and judgment dated 15/12/2021 and all consequential and/or subsequent orders and/or decree
  4. 4.Costs of the application awarded to the Applicant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Civil Procedure Act, Section 3A (inherent jurisdiction) and 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.

It is evident that no application was made for substitution of the deceased Defendant with the legal representative of the estate of the deceased within one year of her death. In accordance with Order 24 Rule 4 of the Civil Procedure Rules, the matter herein automatically abated on 2/2/2020 by operation of law.
p. 6abatement of suit against deceased sole defendant
In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right.
p. 8irregular default judgments set aside as of right
2) An order is hereby issued that the suit herein abated on the 3/2/2020 thus the proceedings herein, the resultant judgment and decree are null and void and the file herein be closed forthwith.
p. 10final orders - abatement declaration and nullity
3) An order is hereby issued setting aside the proceedings and judgment dated 15/12/2021 and all other consequential and or subsequent orders and or decree.
p. 10final orders - setting aside ex parte judgment

Issues in the judgment

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minor

The court's order states the suit abated on 3/2/2020 while the finding in the body states abatement occurred on 2/2/2020 (one year after death on 3/2/2019).

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, "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.