Wanyeki & another v Attorney General (Miscellaneous Application 91 of 2016) [2025] KEELRC 977 (KLR)
The bottom line
#Kenya's High Court dismissed a substitution application because it cited the wrong rule, was filed after judgment, and hid that fact from the court.
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 Notice of Motion dated 4 August 2016 seeking substitution of a deceased plaintiff should be reinstated after dismissal on 11 February 2025 for non-attendance
- 2.Whether Order 24 Rule 7(2) of the Civil Procedure Rules, 2010 was the correct procedural basis for the Motion
- 3.Whether the Motion, which did not disclose that judgment had already been delivered in the primary cause, could serve any legal purpose
Key legal issues
#Whether Order 24 Rule 7(2) CPR 2010 was properly invoked
The Rule governs revival of abated suits and was wrongly invoked because the primary cause had been heard and determined on 15 April 2016, before the Motion was filed
The court examined the proceedings in Nairobi Cause No. 2212 of 2012 and found judgment had been delivered on 15 April 2016. The applicant moved the court on 20 July 2016, after judgment. Order 24 Rule 7(2) applies only to abated suits, not determined ones, so the procedural foundation of the Motion was misconceived and could not aid the applicant.
Whether the dismissal of 11 February 2025 should be vacated and the Motion prosecuted
No - the Motion was fatally defective as it sought substitution after judgment in the primary cause, without disclosing that judgment, and was filed in the wrong file
Although counsel explained his non-attendance on 28 October 2024 (he was before the High Court in Petition No. 108 of 2019), the court held that even if the dismissal were vacated, the Motion would serve no legal purpose. Substitution applications belonged in the primary file, where other parties had in fact filed such applications per the CTS system.
Legal principles established
#- An application for substitution of a deceased party must be filed in the primary file where the main cause is pending, and a substitution application filed after judgment has been delivered and without disclosing that fact is fatally defective
- Order 24 Rule 7(2) of the Civil Procedure Rules, 2010, dealing with revival of abated suits, cannot be invoked where the suit has already been determined
Court orders
#- 1.The Motion filed in Court on 4 August 2016 stands dismissed with no order on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent powers of the High Court over a related Notice of Motion; application anchored on Order 24 Rule 7(2) of the Civil Procedure Rules, 2010
Relief refused
#Substitution of Stephen Mwangi Wanyeki with Fredrick Thuo Wanyeki and Gladys Muthoni Wanyeki as administrators of the deceased's estate
The Motion was wrongly anchored on Order 24 Rule 7(2) (revival of abated suits) when the primary cause had already been heard and determined, and the applicant did not disclose that judgment had been delivered; vacating the dismissal would serve no legal purpose
Costs
No order on costs - each party to bear own costs implicitly; stated as 'stands dismissed with no order on costs'
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 instant Motion is anchored partly on Order 24 Rule 7(2) of the Civil Procedure Rules, 2010. The Rule covers the revival of abated suits.
Despite the applicant's explanations, the Motion seeking substitution is fatally defective in that it would serve no legal purpose to vacate the order of 11 February 2025 dismissing the Motion.
The Motion filed in Court on 4 August 2016 stands dismissed with no order on costs.
Issues in the judgment
#The judgment states the Deputy Registrar directed the parties to appear on 10 July 2024, which is inconsistent with the direction being issued on 11 June 2014; the year appears to be an error
The judgment records that the applicant moved the Court on 4 August 2016 in one place, but elsewhere states she moved the Court on 20 July 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanyeki & another v Attorney General (Miscellaneous Application 91 of 2016) [2025] KEELRC 977 (KLR)", Case Analysis (2025). Motion filed 4 August 2016 (Naivasha). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/977/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.