Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 16 of 2015· [2015] KECA 284 (KLR)

Said Sweilem Gheithan Saanum v The Commissioner of Lands (being sued through The Attorney General) & 5 others

Court of Appeal of Kenya
30 October 2015
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,667 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

When a Kenyan lawsuit's sole plaintiff dies, the family must ask the court to substitute them within one year or the case dies with them—nine years of delay proved fatal here.

What this practically means

#

Executive summary

#
This is a unanimous judgment of the Court of Appeal at Malindi (Makhandia, Ouko and M'inoti, JJ.A.) dismissing an appeal against a ruling of Mukunya, J. of the Environment and Land Court at Mombasa dated 26th May 2014, in which the High Court had refused to enlarge time and revive a suit that had abated. The underlying dispute concerned ownership of Mombasa/Block XVII/1098, from which the suit property was allegedly created without the deceased plaintiff's consent. The deceased died on 28th August 2004; no application to substitute his legal representative was made within one year, so the suit abated. The appellant, the deceased's widow, applied in August 2010 (after withdrawing an earlier chamber summons in 2013) for extension of time and revival, citing confusion in her advocate's firm after his election as Mayor of Mombasa, her ignorance of law, poverty, age and ill-health. The High Court found no good reason, noting over nine years of unexplained delay. The Court of Appeal restated the three-stage scheme of Order 24 of the Civil Procedure Rules, held that abatement occurs by operation of time though a court order is needed for final disposal, and applied the settled Mrao principles limiting interference with judicial discretion. It found the advocate's confusion insufficient cause, and held that illiteracy, poor health, age and bereavement do not themselves constitute sufficient cause where a litigant is represented. The appeal was dismissed with no orders as to costs.

Key legal issues

#
01

Stages under Order 24 of the Civil Procedure Rules on death of a plaintiff

Holding

Order 24 prescribes three stages: the suit does not abate where the cause of action survives; an application must be made within one year (or such extended time as the court allows for good reason) to join the legal representative; failing which the suit abates, and the legal representative may apply for revival upon showing sufficient cause.

Reasoning

The court reproduced Order 24 rules 1, 3, 5 and 7 and analysed them as establishing a three-stage framework. 'Good reason' relates to extension of time to implead the legal representative; 'sufficient cause' governs revival of an abated suit. Abatement occurs automatically by passage of time once no application is made within the year.

p. 4
02

Whether a formal court order is required to record abatement

Holding

While abatement takes effect by operation of law without a formal order, an order of the court is necessary for a final and effectual disposal of the suit, particularly to enable a defendant to apply for costs.

Reasoning

Relying on the language of Order 24 rule 3(2), which requires the fact of abatement to be proved and recorded before a defendant may seek costs, and borrowing Lord Denning's statement in MacFoy v United Africa Co. Ltd on void acts, the court reconciled the automatic legal effect of abatement with the practical need for a court order recording it.

p. 4
03

Whether the High Court Judge erred in refusing extension of time and revival

Holding

The Judge properly exercised his discretion. The delay of nearly nine years was inordinate and unexplained; the confusion in the advocate's firm was not sufficient cause; and grounds such as illiteracy, poor health, advanced age and bereavement do not by themselves constitute sufficient cause where the litigant is represented by counsel.

Reasoning

Applying the settled principles in Mrao Ltd v First American Bank of Kenya Ltd, the court found no misdirection on law or facts and no wrong principle. The appellant was represented throughout; neither advocate swore an affidavit explaining the alleged confusion; the misplaced court file was irrelevant given six years of prior unexplained delay; and the value of the land ought to have prompted vigilance rather than excuse delay.

p. 6
04

Constitutional imperative that justice be delayed no longer

Holding

'Justice shall not be delayed' is a constitutional principle imposing a duty on advocates, litigants and court users to ensure timely disposal of cases; the overriding-objective principles facilitate just, expeditious and proportionate resolution but are not a licence to ignore procedural law.

Reasoning

Invoking Article 159 of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act, the court held that the overriding objective cannot be a panacea healing every sore in litigation. A party seeking its benefit must itself act diligently; inordinate, unexplained delay cannot be cured by an appeal to the overriding principle.

p. 6

Legal principles established

#
  • Where no application is made within one year of a plaintiff's death to join the legal representative, the suit abates as a matter of law by operation of time, and whether to extend time or revive the abated suit is a matter of judicial discretion.
  • Although abatement takes effect by operation of law, an order of the court recording the abatement is necessary for a final and effectual disposal of the suit.
  • The Court of Appeal will not normally interfere with the exercise of discretion by a judge of the court below unless the Judge misdirected himself on law, misapprehended the facts, took into account matters he should not have, failed to take into account matters he should have, or his decision was plainly wrong.
  • Mistakes of counsel are not automatically excused; an advocate owes duties to the court and to the other side, and blame-shifting to an advocate will not justify inordinate, unexplained delay, particularly where the litigant is represented.

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.No orders as to costs
On appeal from
Environment and Land Court at Mombasa
ELC Cause No. 227 of 2002 (ruling on notice of motion for extension of time and revival of abated suit)
Jurisdiction invoked
First appeal to the Court of Appeal against the ruling/order of the Environment and Land Court ( appellate jurisdiction under the Court of Appeal Act; the judgment does not cite a specific constitutional provision as the basis of appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (20)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Said Sweilem Gheithan Saanum v The Commissioner of Lands (being sued through The Attorney General) & 5 others", Case Analysis (2015). Civil Appeal No. 16 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/284/eng@2015-10-30

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