Rotich Cherutich & 3 Others v The Director Of Surveyors [2013] KEELC 129 (KLR)
The bottom line
#A Kenyan court ruled that a land lawsuit can continue without replacing plaintiffs who died, unless the claim dies with them personally.
What this practically means
#Executive summary
#Key legal issues
#Whether the cause of action survives the death of some plaintiffs
The cause of action — a declaratory challenge to the 1994 sub-division and prayers for cancellation of titles and issuance of titles per the 1991 map — survives and can be agitated by the surviving 3rd plaintiff
The court reasoned that the declaratory and conveyancing prayers are not personal to the deceased plaintiffs. It can still declare the 1994 sub-division illegal and order re-subdivision and issuance of new title deeds at the suit of the surviving plaintiff, so substitution is unnecessary.
Whether good reason existed to extend time for substitution beyond one year of death
No good reason was shown; the explanations of 'family disagreements' and 'ailments and bereavement' were general, unparticularised and unsupported by evidence
The court held the discretion to extend time is not granted as a matter of course. The applicants disclosed no details of the alleged disagreements or ailments, no minutes, dates or particulars, and the court accepted that the explanations could be mere paper excuses for sympathy.
Whether the application could be dismissed on the ground that the suit is incompetent
Refused as a basis: this application is not a suitable forum to interrogate the merits or competence of the suit
Counsel for both respondents argued the suit was incompetent and abated. The court declined to determine the competence of the suit within a substitution application, holding that such issues must be raised in a proper forum.
Legal principles established
#- Where there are several plaintiffs, substitution of a deceased plaintiff's legal representative is only necessary if the cause of action does not survive to the surviving plaintiffs
- Good reason for extension of time under the proviso to Order 24 Rule 3(2) cannot rest on general, unsupported statements; specifics and evidence are required
Court orders
#- 1.The application dated 12 April 2013 is dismissed
- 2.No orders as to costs — each party to bear their own costs
- Jurisdiction invoked
- Order 24 Rules 2 and 3 of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (application originally framed under Order 1 Rule 10)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rotich Cherutich & 3 Others v The Director Of Surveyors [2013] KEELC 129 (KLR)", Case Analysis (2013). Eldoret High Court Civil Suit (Environment and Land) — suit instituted in 2002; application dated 12 April 2013 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/129/eng@2013-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.