SUBSTITUTION, ABATEMENT AND REVIVAL OF AN ABATEMENT SUIT.

SUBSTITUTION.
In general, substitution refers to the transfer of rights and obligations as well as the act of
replacing someone or something. resulting in the right to substitution, which shows that a
working contract is for the completion of a project rather than for the individual's time and effort.
This suggests that someone else could complete the assignment if needed.
In Kenya, the right to substitution is governed by Order 24 rule 4 of the Civil Procedure Rules
which mandates that upon death of a defendant and where the cause of action survives, then the
plaintiff should make an application to cause the legal representative of the deceased defendant
to be made a party to the suit hence it is a trite law that substitution of a deceased person in a suit
can only be by or with a legal representative of an estate as stated in the case of Silas Njeru
Njiru & 2 others v Mugo Mukere; Leonard Njeru Mukera & another (Intended
Defendants/Respondents) [2022] eKLR. In order for one to be able to use the right to
substitution one must first prove that he/she has the locus standi before the court as it was
emphasized in the case of Julian Adoyo Ongunga Vs Francis Kiberenge Abano Civil appeal
No. 119 of 2015 which cited with approval the case of Hawo Shanko Vs Mohamed Uta
Shanko (2018) and the case of Otieno Vs Ougo & Another (1986-1989). It is through the
locus standi that lays down the issue of onus where by the onus of moving the court for
substitution is on the party seeking to substitute a deceased and not on the one likely to obtain
letters of administration. It is also through the locus standi that brings effect to the time that one
has for filling for the application. Through the civil procedure rules under Order 24 rule 4 (3)
clearly answers this question where by it provides that within one year where no application for
substitution is made, the suit shall abate as against the defendant which was also echoed in the
case of Republic of Kenya v Julius Maina Kabiru & Thomas Irungu Kigoi (Misc.
Application No. 6 of 2019) hence making the application of substitution to be fatally defective.
Also through rule 3(2) Order 24 it gives the court the discretion to extend time even where the
application for substitution is not made within one year as was stated in the case of Mbaya
Nzulwa …Vs…Kenya Power & Lighting Co. Ltd [2018] eKLR. Through order 24 rule 3(2)
and decided case laws has given brith to the general rule that that an application for substitution
of a deceased party should be made within a reasonable time after death with the discretion left
to the judges and court to interprate what is sufficed to be a reasonable time for applying for
substitutions as it was seen the case of In re Estate of James Maina Njoroge where the court
allowed an application for substitution of the deceased plaintiff's children 2 years after his death
and in the case of Julius Maina Kabiru v Kabiru Kang’ara & Thomas Irungu Kigoi [2022]
the same years lapsed hence the application was refused.
ABATEMENT.
The concept of abatement generally refers to the cessation or reduction of a particular action,
condition, or legal situation, often to prevent harm or mitigate its impact. The application of
abatement varies depending on the area of law in order to mitigate harm, address disputes, and
ensure justice. Whether in tort, civil litigation, environmental law, taxation, or succession,
abatement serves as a means of reducing or eliminating harmful or unmanageable situations.
Here are some of the examples;
1. Abatement of Nuisance

In Kenyan law, abatement of nuisance refers to the action of removing or reducing a nuisance,
which is defined as an act that unlawfully interferes with a person’s right to enjoy their property.
Under the Law of Torts, nuisance can take various forms, such as public nuisance or private
nuisance. In cases of nuisance, abatement can be a self-help remedy, where a person affected by
the nuisance takes action to stop or reduce the nuisance. This remedy is available, provided the
actions taken do not lead to excessive or unlawful force.
Under Section 160 of the Penal Code (Cap. 63), a person who is disturbed by a nuisance may
abate the nuisance by entering the property and removing the source of disturbance, provided
that the action does not result in unnecessary harm.
2. Abatement of a Suit
In civil litigation, abatement of a suit occurs when a case is terminated or suspended for
certain reasons. The suit can be abated if:
 The plaintiff dies before the conclusion of the suit, and there is no representative to
continue the case.
 The cause of action is no longer valid due to certain circumstances (e.g., if the defendant
becomes immune due to a law change).
 Non-compliance with procedural requirements might lead to abatement, such as
failure to comply with time limits or filing formal notices.
This is regulated under the Civil Procedure Act (Cap. 21) and Rules of Procedure in Kenya. In
that the Civil Procedure rules explain that death of a plaintiff does not cause the suit to abate if
the cause of action survives. But within one year of the death of the plaintiff no such application
is made the suit shall abate
3. Abatement in Environmental Law
In the environmental law context, abatement refers to actions taken to prevent, reduce, or
eliminate environmental harm or pollution. Kenya has laws aimed at controlling and preventing
environmental degradation, such as the Environmental Management and Co-ordination Act
(EMCA), 1999. Under these laws, government agencies, organizations, or even individuals are
expected to take abatement measures if their actions or practices cause harm to the environment.
This can involve efforts like cleaning up pollutants, stopping deforestation, or regulating
industries that release hazardous substances into water bodies.
The Environmental Impact Assessment (EIA) process is a key part of this, and when
significant harm is identified, abatement measures are required to address the harm.
4. Abatement in Tax Law
In Kenya, the term abatement is also used in the context of tax law, particularly with regard to
the reduction or forgiveness of taxes owed under certain circumstances. The Kenya Revenue
Authority (KRA) may grant abatements on tax liability, especially in cases where the taxpayer
can prove hardship, or where the taxes owed are significantly disproportionate to the taxpayer’s
ability to pay.
5. Abatement of a Will or Estate
In matters of succession law, abatement can occur if the estate of a deceased person is
insufficient to pay all the debts. In such cases, the debts may be settled by reducing the legacies
or bequests made in the will. The Law of Succession Act (Cap. 160) addresses how estates are
distributed, and abatement may be applied when the estate is unable to fully satisfy all claims or
fulfill all provisions set out in the will.
6. Abatement of Child Maintenance and Support
In cases of child maintenance and support, abatement may occur when there is a significant
change in circumstances. For instance, if the child for whom maintenance is being paid reaches
adulthood, the obligation to continue support may be abated (i.e., stopped or reduced).
The Children’s Act (No. 8 of 2001) outlines child welfare and maintenance, and abatement
could be relevant in this area when the obligations cease.
REVIVAL OF AN ABATEMENT SUIT
The general rule is that an abated claim may be revived, even if a party passed away during the
court of litigation. An abated suit can be revived by virtue of Order Order 24 rule 7 (2) of the
Civil Procedure Rules that provides that a suit that has stalled or a dismissal order may be
requested by the plaintiff, the person claiming to be the deceased plaintiff's legal representative,
the trustee, or the official receiver in the case of a bankrupt plaintiff. If it is established that he
was prevented from continuing the suit by a valid reason, the court will either revive the suit or
set aside the dismissal on terms that it deems appropriate, including costs. Hence in order to relay
on Order 24 rule 7 (2) the applicant must show that he /she was prevented by a sufficient cause
from continuing the suit which should be rational, plausible, logical, convincing, reasonable and
truthful. It should not be an explanation that leaves doubt in a Judges mind. The explanation
should not leave unexplained gaps in the sequence of events as was defined in the court of appeal
in The Hon Attorney General V the Law Society of Kenya & Another No.133 of 2011.
Through the case of Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued
through Attorney General) & 5 Others Civil Appeal No 16 of 2015 [2015] eKLR outlined the
procedure of revival of an abated suit into three stages. As a general rule the death of a plaintiff
does not cause the suit to abate if the cause of action survives. But within one year of the death
of the plaintiff or within such time as the court may in its discretion for “good reason” determine,
an application must be made for the legal representative of the deceased plaintiff to be made a
party. The “good reason” therefore relates to application for extension of time to join the
plaintiff’s legal representative to the suit. Secondly, if no such application is made within one
year or within the time extended by leave of the court, the suit shall abate. Where a suit abates no
fresh suit can be brought on the same cause of action. Thirdly, the legal representative of the
deceased plaintiff may apply for the abated suit to be revived after satisfying the court he was
prevented by “sufficient cause” from continuing with the suit. The effect of an abated suit is that
it ceases to exist in the eye of the law. The abatement takes place on its own force by passage of
time, a legal consequence which flows from the omission to take the necessary steps within one
year to implead the legal representative of the deceased plaintiff.”

In conclusion, Substitution ensures the continuation of a suit even after a party's death, while
abatement addresses situations where a legal action is no longer viable. In order for the court to
accept the application of substitution the first, one has to revie the abated suit, where by the
cause of action has survived, citing or showing sufficient causes which do not need any further
explanations and that do not leave any doubt in the judges mind and then seek for substitution
which was stated in the case of Julius Maina Kabiru v Kabiru Kang’ara & Thomas Irungu
Kigoi [2022] where Judge L. GACHERU stated that the Applicant cannot be substituted in a suit
that has abated without revival.