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ELCAllowedApplication dated 6 October 2017 (suit originally filed 10 January 1997, Nakuru)· [2017] KEELC 34 (KLR)

Kamau Kania v Patrick Rerimoi & 2 others [2017] KEELC 34 (KLR)

Environment and Land Court
22 November 2017
MSMunyao Sila
1,621 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 revived a 20-year-old land case after the plaintiff's death, showing courts can excuse delay if justice demands it, though delays carry costs.

What this practically means

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Executive summary

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This Environment and Land Court at Nakuru ruling by Munyao Sila J determined an application dated 6 October 2017 brought under Order 24 Rules 4 and 7 of the Civil Procedure Rules by Jacod Githinji Kamau on behalf of the estate of the deceased plaintiff, Kamau Kania. The underlying suit, filed in 1997, concerned ownership of land parcel Dundori/Mugwathi Block 2/139 against Patrick Rerimoi Kipkemei (1st defendant) and Mary Nduta Kagwima (2nd defendant). Judgment in formal proof had been obtained against the 1st defendant but was later set aside by Koome J after it emerged the 1st defendant had died in 2004; the 2nd defendant then amended her defence to include a counterclaim. The plaintiff died on 5 June 2015 and on 27 September 2017 the court declared the suit abated and awarded costs to the 2nd defendant. The applicant, holding ad litem letters of administration granted on 4 September 2017, sought revival of the suit and his substitution. The 2nd defendant, acting in person, opposed, arguing no substitution application was made within one year of death and questioning the plaintiff's earlier candour. The court applied Order 24 Rule 3, holding that revival is not automatic and requires sufficient cause. Although unpersuaded by the uncorroborated allegations against the erstwhile advocates, the court allowed the application in the interests of justice, noting the 2nd defendant's counterclaim could not proceed without a plaintiff before the court. The application was allowed, substitution ordered, liberty to amend the plaint within 14 days granted, and costs of the application awarded to the 2nd defendant.

Key legal issues

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01

Whether the applicant was prevented by sufficient cause from applying to continue the suit within one year of the plaintiff's death

Holding

The court allowed the application in the interests of justice, despite reservations about the uncorroborated allegations against the erstwhile advocates, noting the respondent's counterclaim could not proceed unless the plaintiff was represented.

Reasoning

The applicant deposed that after his father's death he repeatedly followed up with the erstwhile advocates, who took no action, prompting the family to instruct new advocates. The court was not fully convinced, since no affidavit was filed by the former firm, but chose to allow the application in the interests of justice so all parties could be heard, particularly because the 2nd defendant's counterclaim would also abate if the suit were not revived.

p. 2

Legal principles established

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  • An order to revive an abated suit is not automatic; the applicant must show sufficient cause why no application was made within one year of death.

Court orders

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  1. 1.Application allowed and the abated suit revived
  2. 2.Substitution of the deceased plaintiff by the applicant, Jacod Githinji Kamau
  3. 3.Applicant at liberty to effect amendments to the plaint, if deemed necessary, within 14 days, failing which the suit deemed as continued by the applicant
  4. 4.Costs of the application awarded to the 2nd defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 3
  • Civil Procedure RulesOrder 24 Rules 4 and 7
Jurisdiction invoked
Order 24 Rules 4 and 7 of the Civil Procedure Rules

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, "Kamau Kania v Patrick Rerimoi & 2 others [2017] KEELC 34 (KLR)", Case Analysis (2017). Application dated 6 October 2017 (suit originally filed 10 January 1997, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/34/eng@2017-11-22

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