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ELCOtherKericho/Sotik East S.S/593 suit, ELC ( plaint filed 24 November 2006)· [2016] KEELC 1024 (KLR)

John Kiptele Bii v Mogogosiek Tea Factory Co. Ltd. [2016] KEELC 1024 (KLR)

Environment and Land Court
8 April 2016
MSMunyao Sila
913 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When a lone plaintiff dies, a Kenyan land suit automatically ends one year later unless their legal representative is joined in time.

What this practically means

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Executive summary

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The plaintiff sued by plaint filed on 24 November 2006, alleging that the defendant fraudulently became registered as proprietor of land parcel Kericho/Sotik East S.S/593 on 23 December 2005, when it was registered in the plaintiff's name. The defendant denied the claim, averring that the plaintiff sold and transferred the property to it by a voluntary agreement of 12 May 2005. The plaintiff did not prosecute the suit, and on 8 March 2012 the defendant applied to have it dismissed for want of prosecution. The application was heard on 26 May 2015 and allowed by ruling of 29 May 2015, dismissing the suit with costs to the defendant, who then filed a bill of costs for taxation. During taxation, counsel for the plaintiff filed an application to cease acting and an affidavit revealing that the plaintiff had died. A Certificate of Death showed the plaintiff died on 27 March 2014. The defendant's counsel conceded that the suit should be marked as abated. Munyao Sila J held that under Order 24 rule 3(2) the suit abated one year after the death, on 27 March 2015, so it was irregular to hear and decide the dismissal application after abatement. The court reviewed the dismissal order and substituted an order that the suit abated by reason of the plaintiff's death. On costs, the court held that the defendant could not proceed to taxation on the basis of the reversed order, but may apply under Order 24 rule 3(2) within 30 days for costs recoverable from the deceased's estate; failing which the suit stands abated with no order as to costs.

Key legal issues

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01

Whether a suit that had abated could properly be dismissed for want of prosecution

Holding

It was irregular to argue and determine the dismissal application after the suit had abated; the dismissal order was therefore reviewed and substituted with an order that the suit abated.

Reasoning

The plaintiff died on 27 March 2014. Under Order 24 rule 3(2), where no application is made within one year to join the legal representative, the suit abates. The abatement occurred on 27 March 2015, before the application was argued on 26 May 2015 and decided on 29 May 2015. Neither counsel was aware of the death, but the court's jurisdiction to proceed had been extinguished by the abatement, so the best course was to review and set aside the dismissal order and mark the suit as abated.

p. 2
02

What costs order follows where a suit abates on the plaintiff's death

Holding

The defendant may apply under Order 24 rule 3(2) for costs to be recovered from the estate of the deceased plaintiff; absent such an application within 30 days, the suit stands abated with no order as to costs.

Reasoning

Order 24 rule 3(2) permits the court, on the defendant's application, to award the costs incurred in defending the suit, recoverable from the estate of the deceased plaintiff. Because the dismissal order was reversed, the pending bill of costs could not be taxed on its basis. The court gave the defendant 30 days to file a costs application so as to achieve finality.

p. 2

Legal principles established

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  • A suit by a sole plaintiff abates one year after the plaintiff's death if no application is made to join the legal representative, and the court cannot properly entertain or decide interlocutory applications in a suit that has already abated.
  • Where a suit abates owing to the death of the plaintiff, the defendant may, on application, be awarded costs to be recovered from the estate of the deceased plaintiff.

Court orders

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  1. 1.The order dismissing the plaintiff's suit for want of prosecution with costs delivered on 29 May 2015 is reviewed
  2. 2.In place of the dismissal, the suit is marked as having abated owing to the death of the plaintiff
  3. 3.The defendant's bill of costs cannot be taxed on the basis of the reversed dismissal order
  4. 4.The defendant, if minded to apply for costs, is directed to file an application under Order 24 Rule 3(2) within 30 days
  5. 5.If no such application is filed, the suit will be marked as abated with no order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 3(1) and (2)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; review of own order; Civil Procedure Rules, Order 24 rule 3

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, "John Kiptele Bii v Mogogosiek Tea Factory Co. Ltd. [2016] KEELC 1024 (KLR)", Case Analysis (2016). Kericho/Sotik East S.S/593 suit, ELC ( plaint filed 24 November 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1024/eng@2016-04-08

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