Kitulu & 8 others v Ndolo (Environment and Land Case 931 of 2017) [2025] KEELC 8055 (KLR)

e. That a permanent injunction be issued restraining the Registrar Titles and/or the National Land Commission form transferring the suit property or any portion thereof in the name of Jackson Musyoka Kakunzu and Peter Kaleli Kanyasya and/or their respective estates. f. That the costs of this application be borne by the Plaintifi. Background 2. The late Jackson Musyoka Kakunzu and Peter Kaleli Kanyasya were among 9 Plaintifis who filed suit against the late Elizabeth Kamene Ndolo. The two died on 13th July, 2016 and 28th August, 2020 respectively. 3. The court delivered a judgment in favour of 9 Plaintifis on 19th March, 2018. The late Elizabeth Kamene Ndolo filed an appeal against the judgment to the Court of Appeal. In a judgment delivered on 18th November, 2022, the appeal by the late Elizabeth Kamene Ndolo was dismissed. The successful Plaintifis in Makueni ELC 233 to 241 of 2017 commenced the process of execution which was delayed due to subsequent subdivision of the property which was the subject of the 9 suits. Applicant’s contention 4. The Applicant contends that as Jackson Musyoka Kakunzu died on 13th July, 2016 and there was no substitution made within one year from his demise, there is no valid judgment which would have been made in his favour on 19th March, 2018. As for the late Peter Kaleli Kanyasya who died on 28th August, 2020, the Applicant contends that there was an application dated 26th April, 2024 which sought amendment of 9 decrees including the decree in favour of Peter Kaleli Kanyasya issued by dint of judgment of 19th March, 2018. The Applicant contends that as at the time the application for amendment of the decree was made, there had been no substitution of the estate of Peter Kaleli Kayasya and that the application was brought in the name of the deceased. 5. The Applicant states that no orders could have been granted in favour of the two deceased Plaintifis as was the case in the ruling of 22nd May, 2024. The Applicant therefore contends that any execution of the decree in favour of the estate of the deceased Plaintifis is irregular and ought to be stopped by the court allowing this application. Respondents’ contention 6. The Applicant’s application was opposed by the Respondents based on a replying afidavit sworn on 18th March, 2025. The Respondents contend that the Applicant’s application is incompetent and is an abuse of the process of the court. 7. The Respondents state that the application is an attempt to thwart the execution of the decree by the Applicant who does not appreciate the efiect of the judgment delivered on 19th March, 2018. 8. The Respondents state that the suit filed by Jackson Musyoka Kakunzu had not abated as representative of his estate applied for letters of administration vide Succession Cause No. 57 of 2017. The letters of administration were issued on 20th March, 2018 a day after the judgment was delivered. 9. The Respondents further stated that abatement of suits only apply to proceedings in a suit but do not extend to execution process as per Order 24 Rule 10 of the Civil Procedure Rules. As for Peter Kaleli Kanyasya, the Respondents state that he died two years after the court had delivered its judgment. Execution of the decree after his demise could go on even without there being a legal representative of his estate. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8055/eng@2025-11-20 2

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10. The Respondents state that this application has been made after inordinate delay and the Applicant has not demonstrated what loss if any he will sufier. Submissions by the parties 11. The parties were directed to file written submissions. The Applicant filed his submissions dated 28th April, 2025. The Respondents filed submissions dated 13th May, 2025. 12. The Applicant submitted that as no substitution was made within 12 months, the suit by Jackson Kasyoka Kakunzu abated. The Applicant relied on the case of Central Bank of Kenya –vs- Fadhil Commercial Bank Ltd & Others (2016) eKLR where the Court of Appeal held that failure to substitute within the stipulated time leads to automatic abatement of the suit, unless an extension of time is sought and granted within the twelve month period or shortly thereafter with suficient cause shown. 13. The Respondents submitted that under Order 24 Rule 10 of the Civil Procedure Rules, nothing in Rules 3, 4 and 7 shall apply to proceedings in execution of a decree or order. Peter Kaleli Kanyasya died on 20th August, 2020 two years after judgment had been delivered. The process of execution can therefore be carried out without the need for grant of letters of administration. 14. The Respondents relied on the case of Agnes Wangondu –vs- Uchumi Supermarkets Ltd where it was held as follows: “ So clearly, the requirement substitution in Order 24 Rule 4(3) does not apply to proceedings in execution of an order as was the case before the lower court”. 15. The Respondents also relied on the case of Fidelity Commercial Bank Ltd –vs- Green Woods Ltd & 2 others NBI HCCC No. 219 of 2019 where it was held as follows: “ Under the provisions of Order 24 Rule 10 of the Civil Procedure Rules, it is provided that the substitution or causing the legal representative of the deceased to be made a party to the suit shall not be efiected in the execution of the decree or order........ The Plaintifi or the Defendant or any party as the case may be is entitled to proceed with execution without substituting or making a party to the execution the legal representative of the deceased”. 16. The Respondents further relied on the case of Mueni Kiamba –vs- Mbithi Kimeu Kimolo (2017) KEHC 3846 (KLR) where it was held as follows: “ Indeed the matter had proceeded up to judgment and decree and what remained only was the finalization of the execution. I find there is wisdom in the above provision in that matters that have reached execution stage should be allowed to proceed without the need for substitution of deceased parties. This goes a long way in ensuring the overriding objective of the Civil Procedure Act and Rules namely the timely and expeditious determination of disputes between parties”. 17. As for the late Jackson Musyoka Kakunzu, Succession proceedings were commenced in 2017 and letters of grant were issued on 20th August, 2018 a day after the judgment. An application for his substitution would not have been made earlier than 20th August, 2018. This was the position in the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8055/eng@2025-11-20 3

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case of Wanyonyi & 2 others –vs- Masinde Wanyinyi (Applicant) 2024 KEELC 13981 (KLR) where it was held as follows: “ The procedure should first be to have a person appointed to represent the estate of the deceased before an application for substitution of a Plaintifi or even revival of an abated suit can be made. My view is that this application is premature. Therefore, the current application to substitute a Plaintifi is not tenable for the abovementioned reasons”. Analysis and Determination 18. I have carefully considered the Applicant’s application as well as the opposition to the same by the Respondents. The only issues for determination are firstly whether the suit by Jackson Musyoka Kakunza and Peter Kaleli had abated and secondly whether the judgment of 19th March, 2018 together with all consequential orders arising therefrom ought to be vacated as against the two deceased persons. 19. Order 24 Rule 10 of the Civil Procedure Rules is clear that abatement does not afiect execution proceedings. In the instant case, Peter Kaleli Kanyasya died on 28th August, 2020. The judgment in his favour had already been passed. It is only the process of execution which is remaining. His suit had therefore not abated and the judgment or any consequential orders arising from the judgment cannot be vacated. 20. As for the late Jackson Musyoka Kakunzu letters of administration for his estate were issued on 20th August, 2018, a day after the judgment was delivered. The proceedings in his case had been conducted to the end. What was pending is judgment which was delivered in his favour. There were no more proceedings which would have necessitated a legal representative to take over. What is remaining is execution of the decree which can be done even if no substitution is done. However in the case of his estate, substitution has been done. This is what was clearly stated in the case of Fidelity Commercial Bank Ltd and Mueni Kiamba (Supra). 21. The judgment in favour of Peter Kaleli Kanyasya cannot therefore be vacated. This is the same case with the consequential orders arising out of the judgment of 19th March, 2018. Disposition 22. From the above analysis, it is clear that the Applicant’s application is devoid of merit. It is dismissed with costs to the Respondents. It is so ordered. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 20TH DAY OF NOVEMBER, 2025. .............................................. HON. E. O. OBAGA JUDGE In the presence of: Mr. Mbindyo for Respondents Ms. Jematia for Applicant Court assistant - Nelima https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8055/eng@2025-11-20 4

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