Abdallah v Shee (Environment and Land Case 76 of 2013) [2026] KEELC 5191 (KLR)
The bottom line
#A Mombasa court refused to revive a land suit, ruling it never lapsed after the plaintiff died because judgment came within one year.
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 suit abated upon the death of the Plaintiff on 25th October 2023
- 2.Whether the proceedings culminating in the judgment of 6th December 2023 were ex parte proceedings and whether that judgment is an ex parte judgment liable to be set aside
- 3.Whether the suit should be revived, the legal representative substituted, and the suit reopened for hearing on merit
- 4.Whether interlocutory injunctions should issue (as urged in the defendant's submissions)
Key legal issues
#Whether the suit abated upon the death of the Plaintiff
The suit did not abate; all parties were alive when the suit was last heard on 11th May 2023 and the judgment of 6th December 2023 was delivered within one year of the Plaintiff's death on 25th October 2023.
The court examined Order 24 Rules 3 and 4 of the Civil Procedure Rules, which provide that where a sole plaintiff dies and the cause of action survives, the legal representative is to be made a party, failing which the suit abates after one year. Here the plaintiff died approximately one and a half months before judgment. Since the cause of action survived and judgment was delivered within the one-year window, there was no abatement and no occasion for revival under Order 24 Rule 7(2).
Whether the proceedings culminating in the judgment of 6th December 2023 were ex parte
There were no ex parte proceedings; the Plaintiff was afforded an opportunity to be heard, never appeared, and the suit was dismissed for non-attendance before the counterclaim was heard.
The court traced the litigation history: the Plaintiff was heard on 17th September 2013 in proceedings later set aside on 21st April 2016; she then repeatedly failed to attend for cross-examination despite orders, summons and warrants of arrest, culminating in dismissal of her suit on 28th February 2019. The counterclaim was thereafter heard, including on 11th May 2023 with the Plaintiff represented by counsel. Dismissal for conscious non-attendance is not an ex parte proceeding, so no ground existed for setting aside the judgment under Order 12 Rule 7.
Whether the suit should be reopened for hearing on merit
The application to reopen was refused because sufficient cause was not shown.
Having found that the suit neither abated nor was decided ex parte, the foundation for reopening collapsed. The Plaintiff had been given extensive opportunities to participate, including cross-examination dates in 2018, 2019 and 2020, and an application by the Applicant to testify on her behalf had been dismissed by a ruling dated 15th November 2022. Without sufficient reasons, reopening a fully heard and determined suit would serve no lawful purpose.
Legal principles established
#- A suit does not abate where the cause of action survives and judgment is delivered within one year of the plaintiff's death; what remains thereafter is execution against the estate.
- Abatement under Order 24 occurs by operation of law only where no application for substitution of a deceased party is made within one year.
- Dismissal of a suit for a plaintiff's failure to attend court is not an ex parte proceeding and is not liable to be set aside as such.
Court orders
#- 1.The application seeking revival of the suit, substitution of the deceased Plaintiff's legal representative, setting aside of the ex parte proceedings and judgment of 6th December 2023, and reopening of the suit was dismissed
- 2.Costs of the application awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 24 Rule 7(2) of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act (inherent jurisdiction), Article 50 of the Constitution invoked by the applicant
Relief refused
#Revival of the alleged abated suit and substitution of Omar Awadh Mbarak as legal representative of the deceased Plaintiff
The suit never abated because judgment was delivered within one year of the Plaintiff's death
Setting aside of the proceedings and judgment of 6th December 2023 as ex parte
The court found there were no ex parte proceedings; the Plaintiff was given opportunity to be heard but never attended and the suit was dismissed for non-attendance
Reopening of the suit for hearing and determination on merit
The Plaintiff has not given sufficient reasons for reopening the case
Costs
The application is dismissed with costs (costs to the Respondent).
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.
The upshot of the above is that the application is dismissed with costs
I do find that the suit did not abate as the judgment was delivered when the suit was still alive. What remained after judgment was execution process as judgment was delivered within one year after death of the plaintiff.
I have carefully considered the history of this case and do find that there were no exparte proceedings as the plaintiff was given an opportunity to be heard but never appeared in court and therefore the court dismissed the suit and proceeded with the counterclaim.
The court finds that the dismissal for failure to attend was not exparte proceeding as the plaintiff was aware. The plaintiff has not given sufficient reasons for re-opening the case.
Issues in the judgment
#The narrative contains internally conflicting procedural chronology: the Replying Affidavit/submissions state the Plaintiff's suit was dismissed on 28th February 2019, yet also state the last hearing of the suit took place on 11th May 2023 and that judgment was reserved thereafter; the court nonetheless proceeds on the latter chronology.
The Applicant's application is premised on abatement and an ex parte judgment of 6th December 2023, while the Respondent's record indicates the Plaintiff's own suit had earlier been dismissed for non-attendance and only the counterclaim proceeded; the judgment does not resolve the applicant's assertion that 'the ex parte proceedings and the judgment delivered on 6th December 2023 be set aside' against the finding that the suit was dismissed rather than heard ex parte.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdallah v Shee (Environment and Land Case 76 of 2013) [2026] KEELC 5191 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5191/eng@2026-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.