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

demise of the original Plaintiff his advocates successfully sought and obtained an order for his substitution. 3. However, when the defendant passed on and the appellant sought his substitution and revival of the abated suit, the trial court declined to allow the relevant application on two main grounds. First, that there was undue delay in filing the application since the deceased passed on in 2017. Second, that there was no express provision in Order 24 of the Civil Procedure Rules (the Rules) providing for revival or reinstatement of the suit. 4. Being aggrieved by the said ruling and order the appellant filed a memorandum of appeal dated 18.04.2024 challenging the said decision. It was contended that the trial court had erred in law and fact in holding Order 24 rule 4(3) of the Rules did not provide for revival of an abated suit where the defendant had died. As a result, the appellant asked this court to set aside the said order and allow the notice of motion dated 12.07.2021. He also sought costs of the appeal and of the said motion. 5. When the application was listed for directions, it was directed that it shall be canvassed through written submissions only. The parties were consequently granted timelines within which to file and exchange their respective written submissions. The MOMBASA ELC APPEAL NO. E019 OF 2024 (JUDGMENT) Page 2

page 2 of 6

record shows that the appellant filed submissions dated 11.02.2026 whereas the respondent’s submissions were dated 11.03.2026. 6. The court has considered the material and submissions on record in this appeal. The main question for determination is whether or not the trial court erred in law and fact in dismissing the appellant’s application dated 12.07.2021. The ancillary question is the issue of costs. 7. The court is aware that in dismissing the appellant’s said application, the trial court was exercising judicial discretion. In the case of Mrao Limited vs First American Bank of Kenya Ltd & 2 Others (Civil Appeal No. 39 of 2002) [2003] KECA 175 (KLR) (7 March 2003) (Judgment), it was held, inter alia, that an appellate court should only interfere with the exercise of such discretion if the trial court: a) Misdirected itself in Law; b) Misapprehended the facts; c) Took into account irrelevant considerations; d) Failed to take into account relevant considerations; or e) Was plainly wrong. 8. The material record shows that the trial court primarily relied on Order 24 Rule 4(3) of the Rules in dismissing the appellant’s MOMBASA ELC APPEAL NO. E019 OF 2024 (JUDGMENT) Page 3

page 3 of 6

application. The trial court took the view that whereas Order 24 Rule 3(2) expressly provided for revival of a suit where the plaintiff has died there was no provision in law providing for similar relief where the defendant was deceased and the relevant application for his substitution was not filed within one year upon his demise. 9. It is evident that the trial court did not consider the provisions of Order 24 Rule 7 (2) of the Rules which stipulates as follows: “The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the trustee or official receiver in the case of a bankrupt plaintiff may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit.” 10. 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. The court is thus of the view that such misdirection in law is sufficient to warrant this court’s interference with the Judicial discretion of the trial court. 11. The material on record further shows that the appellant was prevented by sufficient cause from continuing with the suit. MOMBASA ELC APPEAL NO. E019 OF 2024 (JUDGMENT) Page 4

page 4 of 6

The material on record shows that even though the deceased died on or about 02/02/2017 his personal representative was not appointed until 16.09.2019. The material on record further shows that the advocates for the deceased defendant only disclosed his demise to the court on 17.06.2021. The court is of the opinion that 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. 12. In the circumstances the court is of the view that the trial court misdirected itself on matters of fact by holding that the appellant had delayed in filing the relevant application between 2017 and 2021 without any reasonable justification. The material on record shows that the appellant acted diligently in filing the application dated 12.07.2021 soon upon learning of the demise of the deceased. The court is further of the view that the issue of the missing court file is neither here nor there since the appellant could not have filed the motion for revival of the suit and substitution of the deceased in the absence of an appointed legal representative and in the absence of the appellant’s knowledge of his demise. MOMBASA ELC APPEAL NO. E019 OF 2024 (JUDGMENT) Page 5

page 5 of 6

13. The upshot of the foregoing is that the court is persuaded that there is merit in the appellant’s appeal. As a consequence, the court makes the following orders for disposal thereof: a) The appeal be and is hereby allowed. b) 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. c) The Appellant is hereby awarded costs of the appeal. It is so decided. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 24TH DAY OF SEPTEMBER 2026 Y. M. ANGIMA JUDGE In the presence of: Mr Odipo for the Appellant Mr Omollo for the Respondent Court Assistant: Hinga MOMBASA ELC APPEAL NO. E019 OF 2024 (JUDGMENT) Page 6

page 6 of 6