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ELCAllowedELC Appeal No. E019 of 2024

Abdalla Ali Taib (legal representative of the Estate of Sheikh Abdulla Taib (Deceased)) v Estate of Christopher Kuria Gichanga

Environment and Land Court of Kenya
24 September 2026
YAY. M. Angima
1,217 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Mombasa against a ruling of Hon. Maureen Nabibya (P.M) delivered on 26.03.2024 in Mombasa CM ELC No. 775 of 1997. The underlying suit, filed in 1997, saw both the original plaintiff and the defendant die during its pendency. The plaintiff's estate obtained substitution, but when the appellant sought substitution of the deceased defendant and revival of the abated suit by a notice of motion dated 12.07.2021, the trial court dismissed it on two grounds: undue delay since the defendant's death in 2017, and the absence of an express provision in Order 24 of the Civil Procedure Rules permitting revival where the defendant had died. Angima J identified the sole substantive question as whether the trial court erred in dismissing that application. Applying the Mrao Ltd v First American Bank standard for interfering with judicial discretion, the court held the trial court gravely misdirected itself in law by overlooking Order 24 Rule 7(2), which expressly allows revival of an abated suit upon proof of sufficient cause. On the facts, the appellant was prevented by sufficient cause: no personal representative of the deceased defendant existed until 16.09.2019, and the defendant's advocates only disclosed his demise on 17.06.2021, after which the appellant moved promptly. The appeal was allowed, the trial court's order set aside and substituted with an order allowing the motion dated 12.07.2021 in terms of prayers 1-4, with costs of the appeal to the appellant.

Questions the Court framed

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

  1. 1.Whether the trial court erred in law and fact in dismissing the appellant's application dated 12.07.2021 seeking extension of time to substitute the deceased defendant and revival of the abated suit
  2. 2.The issue of costs

Key legal issues

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01

Whether Order 24 of the Civil Procedure Rules provides for revival of a suit abated by the death of the defendant

Holding

Yes - Order 24 Rule 7(2) permits revival of an abated suit where sufficient cause is shown; the trial court gravely misdirected itself in holding there was no such provision.

Reasoning

The trial court relied on the absence of an express revival provision for a deceased defendant, noting Rule 3(2) covers only a deceased plaintiff. The appellate court held the trial court overlooked Rule 7(2), which allows a person claiming to be a legal representative to apply to revive an abated suit upon proof of sufficient cause. That misdirection in law warranted interference with the trial court's discretion.

p. 4
02

Whether the appellant was prevented by sufficient cause from applying for substitution and revival within the prescribed period

Holding

Yes - the delay was justified because no personal representative had been appointed until 16.09.2019 and the appellant only learned of the defendant's demise when his advocates disclosed it on 17.06.2021.

Reasoning

The deceased defendant died on or about 02/02/2017 but his personal representative was only appointed on 16.09.2019, and his advocates only disclosed the demise to the court on 17.06.2021. The appellant filed the motion on 12.07.2021 soon after learning of the death, so he acted diligently and the trial court erred in finding unexplained delay between 2017 and 2021.

p. 5

Legal principles established

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  • An appellate court should only interfere with the exercise of judicial discretion if the trial court misdirected itself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or was plainly wrong.
  • Order 24 Rule 7(2) of the Civil Procedure Rules provides a mechanism for revival of an abated suit where the applicant was prevented by sufficient cause from continuing the suit, including where the defendant died.

Court orders

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  1. 1.The appeal be and is hereby allowed
  2. 2.The order of the trial court dated 26.03.2024 is set aside and substituted with an order allowing the appellant's notice of motion dated 12.07.2021 in terms of Orders 1, 2, 3 and 4 thereof
  3. 3.The Appellant is awarded costs of the appeal

The bench

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

YA
majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Mombasa
Mombasa CM ELC No. 775 of 1997
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's ruling under the Civil Procedure Act and Rules (Order 24 appeal)

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.

The court is of the view that the trial court gravely misdirected itself in law in holding that there was no provision under Order 24 of the Rules for revival of an abated suit in the circumstances.
p. 4Revival of abated suit - Order 24 Rule 7(2)
the appellant could not have filed the application dated 12.07.2021 earlier due to the absence of a personal representative for the estate of the deceased and due to lack of knowledge of his demise.
p. 5Sufficient cause for delay
The order of the trial court dated 26.03.2024 is hereby set aside and substituted with an order allowing the appellant's notice of motion dated 12.07.2021 in terms of Orders 1, 2, 3, and 4 thereof.
p. 6Final orders

Issues in the judgment

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minor

Judgment dated and delivered at Thika despite being an ELC Mombasa appeal.

minor

Submissions dates (2026) appear inconsistent with the 2024 appeal timeline.

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, "Abdalla Ali Taib (legal representative of the Estate of Sheikh Abdulla Taib (Deceased)) v Estate of Christopher Kuria Gichanga", Case Analysis (2026). ELC Appeal No. E019 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5842/eng@2026-09-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.