Sendi & 2 others v Machera (Enviromental and Land Originating Summons 566 of 2017) [2026] KEELC 4793 (KLR)
The bottom line
#A Migori court revived a land case that had automatically died after the defendant passed away, because the family had no administrator for over two years.
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 law firm representing the Respondent is properly on record
- 2.Whether the Applicants have demonstrated sufficient cause to warrant revival of the abated suit and extension of time for substitution
Key legal issues
#Whether M/S Abisai & Company Advocates were properly on record for the Respondent
The firm is properly on record; the holder of a limited grant ad litem is entitled to representation even before formal substitution.
The Court held it would be illogical to deny the Estate representation on an application whose very object determines whether the estate is drawn back into litigation, particularly where the Court had already recognised the grant holder's standing by hearing and allowing her earlier application. Sustaining the objection would leave the Estate unrepresented and unheard, contrary to natural justice.
Whether the Applicants demonstrated sufficient cause for extension of time, revival and substitution
Yes; the suit abated on 8th January 2023 but the Applicants explained each period of delay, and the estate lacked an administrator for the first two periods.
The Court analysed the delay period by period per Salat. The roughly 26 months before an administrator was granted were attributable to the practical realities of obtaining a grant and were beyond the Applicants' control. Subsequent periods reflected diligent engagement, and the final eight months were spent reformulating the application to seek revival first, in compliance with the Court's earlier guidance. No specific prejudice to the Estate was demonstrated.
Whether a rigid time limit governs revival of an abated suit
No statutory limit exists; the Court proposed 12 years from abatement as an outer benchmark and urged appellate guidance.
Order 24 does not fix a limitation period for revival. Courts have used a six-year benchmark by analogy to contract claims, but the Court found the choice of the contractual period unreasoned. By analogy to Section 4(4) of the Limitation of Actions Act, which bars execution of decrees after twelve years, the Court proposed twelve years from abatement as the outer limit and invited the Court of Appeal or Supreme Court to give guidance.
Legal principles established
#- Abatement under Order 24 Rule 4(3) is self-executing and automatic upon lapse of one year from death; substitution after abatement requires prior revival of the suit.
- An abated suit has no party against whom steps can be taken until revived.
- The Court proposes an outer limit of 12 years from abatement (13 years from death) for entertaining revival applications, by analogy to Section 4(4) of the Limitation of Actions Act.
- A legal representative ad litem holding a limited grant is entitled to legal representation even before formal substitution.
Court orders
#- 1.Time of abatement extended for the Applicants to substitute the deceased Defendant with his legal representative, and the suit deemed as subsisting
- 2.The suit which abated against the deceased Defendant Robi Mwita Machera on 8th January 2023 revived
- 3.The deceased Defendant substituted by his legal representative SOFIA MOGOSI GIBOMA, substitution to be done within fourteen (14) days
- 4.The suit reopened, further hearing to proceed upon directions on 29th October 2026
- 5.Each party to bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 24 Rules 4 and 7, Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap 21
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.
a) Time of abatement be and is hereby extended and the same extends for the Applicants to substitute the deceased Defendant with his legal representative, and the suit against him is deemed as subsisting.
b) The suit herein, having abated against the deceased Defendant, Robi Mwita Machera, on 8 th January, 2023, be and is hereby revived.
c) Upon the grant of orders (a) and (b) above, the deceased Defendant, Robi Mwita Machera, is hereby substituted by his legal representative, SOFIA MOGOSI GIBOMA. The Substitution should be done within only fourteen (14) days.
e) The parties herein are relatives. For this reason, each party shall bear its own costs of this application,
The Applicants saw the light and have thus cured the very defect.
Issues in the judgment
#Relationship of the Respondent to the deceased is stated inconsistently and marked '(sic)' in the judgment
Court's own proposed twelve-year outer benchmark from abatement is stated with its consequence in years from death as thirteen years, a non-standard formulation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sendi & 2 others v Machera (Enviromental and Land Originating Summons 566 of 2017) [2026] KEELC 4793 (KLR)", Case Analysis (2026). ELC 566 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4793/eng@2026-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.