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ELCAllowedNakuru HCCC No. 408 of 2006 (formerly HCCC No. 861 of 2006)· [2015] KEELC 339 (KLR)

Madara Evans Okanga Dondo v Kiarie Nganga [2015] KEELC 339 (KLR)

Environment and Land Court
11 June 2015
MSMunyao Sila
1,685 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that a counterclaim survives even when the main case is withdrawn, and brief delays in substituting a deceased party can be excused.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Munyao Sila, J) concerned an application by the administrators of the deceased defendant, Kiarie Nganga, to revive this suit and substitute both the deceased plaintiff (Rev Madara Evans Okanga Dondo) and the deceased defendant with their respective legal representatives. The suit concerned land parcel Nakuru/Langa Langa Block 1/330, which the original plaintiff alleged was fraudulently transferred to the defendant after a public auction conducted on 13 December 2005 by HFCK, the chargee. The defendant filed a defence with counterclaim seeking eviction and mesne profits. The plaintiff withdrew his suit on 19 October 2007 and filed Nakuru HCCC No. 270 of 2007 raising the same issues. The plaintiff died on 29 July 2009 and the defendant on 29 September 2011. The respondents opposed, arguing there was no suit in existence after withdrawal, that the newer suit sufficed, and that there had been unreasonable delay in seeking substitution. The court held that the counterclaim is a suit in itself which survives the plaintiff's withdrawal; that an earlier substitution application for the deceased plaintiff was filed within one year; and that the few days' delay past one year regarding the deceased defendant was insignificant. The existence of the parallel suit was held no ground to prejudice the defendant, who should retain the choice of where to prosecute his counterclaim and pursue costs. The application was allowed with costs in the cause.

Key legal issues

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01

Existence of a suit after withdrawal of the main claim

Holding

The counterclaim survives as an independent suit capable of revival despite the withdrawal of the plaintiff's claim

Reasoning

The court rejected the argument that the plaintiff's withdrawal left no suit in existence. A counterclaim is a cross-suit in its own right; once filed it remains on record independently, and the deceased defendant's administrators may pursue it. The withdrawal only disposes of the plaintiff's claim, not the defendant's counterclaim, so a suit exists which can be revived.

p. 3
02

Delay in seeking substitution of the deceased defendant

Holding

A delay of a few days beyond the one-year abatement period was not significant and did not bar substitution

Reasoning

The defendant died on 29 September 2011 and the application was filed on 5 October 2012, a few days past one year. The court held this marginal delay insignificant in the circumstances, exercising its discretion to allow substitution. Earlier, an application for substitution of the deceased plaintiff had been filed within one year and was still pending, further reducing any prejudice.

p. 3
03

Multiplicity of suits over the same subject matter

Holding

The existence of a parallel suit (Nakuru HCCC No. 270 of 2007) was no reason to prejudice the defendant by refusing revival

Reasoning

The court noted the same counterclaim existed in the newer suit but declined to speculate how the two matters would proceed. Issues of costs remained live in this suit, and the defendant should retain the choice of where to prosecute his counterclaim. Courts frown on multiplicity of suits, but the defendant should not be prejudiced because the plaintiff chose to file a fresh suit rather than amend pleadings.

p. 3

Legal principles established

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  • Withdrawal of a plaintiff's suit does not extinguish a counterclaim, which is a suit in itself capable of being pursued and revived

Court orders

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  1. 1.The suit is revived
  2. 2.The parties are to be substituted as proposed - the deceased plaintiff with Fosca Aboli Dondo and Caleb Otieno Madara Dondo, and the deceased defendant with John Nganga Kiarie and Patrick Nganga Kiarie
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure Act (Rules)Order 24 Rules 3 and 4
Jurisdiction invoked
Civil Procedure Act, Order 24 Rules 3 and 4 (substitution and revival of suit after death of parties)

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, "Madara Evans Okanga Dondo v Kiarie Nganga [2015] KEELC 339 (KLR)", Case Analysis (2015). Nakuru HCCC No. 408 of 2006 (formerly HCCC No. 861 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/339/eng@2015-06-11

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