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ELCDismissedEldoret High Court Civil Suit (Environment and Land) — suit instituted in 2002; application dated 12 April 2013 (number not stated in judgment)· [2013] KEELC 129 (KLR)

Rotich Cherutich & 3 Others v The Director Of Surveyors [2013] KEELC 129 (KLR)

High Court of Kenya (Environment and Land Court, as then constituted)
20 June 2013
2,167 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a ruling on a Notice of Motion dated 12 April 2013 by Rose Jerono Rotich (widow of the deceased 1st plaintiff, Rotich Cherutich, who died on 6 October 2011) and Charles Kosgei Langat (son of the deceased 4th plaintiff, who died on 1 May 2008), seeking enlargement of time to be joined as 1st and 4th plaintiffs in place of the deceased, each having obtained grants of letters of administration ad litem. The suit, instituted in 2002 by four members of Nyaru Farm, sought a declaration that the 1994 sub-division of the farm was null and void, cancellation of titles issued on that basis, and issuance of titles based on the 1991 sub-division map. The respondents opposed, arguing the suit had abated, that no good reason for the delay was shown, and that the suit itself was incompetent. The court, applying Order 24 Rules 2 and 3 rather than the cited Order 1 Rule 10, held that the cause of action survived to the surviving 3rd plaintiff — the declaratory and title-related prayers were not personal to the deceased — so substitution was unnecessary. Alternatively, the court held that no good reason justified extension of the one-year substitution period, the explanations of 'family disagreements' and 'ailments and bereavement' being vague, unparticularised and unsupported by evidence. The court declined to rule on the respondents' contention that the suit was incompetent, holding the substitution application was not the proper forum. The application was dismissed with no orders as to costs. Delivered by Munyao Sila J, Environment and Land Court at Eldoret, on 20 June 2013.

Key legal issues

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01

Whether the cause of action survives the death of some plaintiffs

Holding

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

Reasoning

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.

p. 3
02

Whether good reason existed to extend time for substitution beyond one year of death

Holding

No good reason was shown; the explanations of 'family disagreements' and 'ailments and bereavement' were general, unparticularised and unsupported by evidence

Reasoning

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.

p. 4
03

Whether the application could be dismissed on the ground that the suit is incompetent

Holding

Refused as a basis: this application is not a suitable forum to interrogate the merits or competence of the suit

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 12 April 2013 is dismissed
  2. 2.No orders as to costs — each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure RulesOrder 24 Rules 2 and 3
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.