Adam Said Jumbe & Merceline Kishaga Buluma v Preston Mwakio Jumbe [2017] KEELC 212 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit abated upon the death of the 1st Plaintiff
The suit did not abate because the cause of action survived the 1st Plaintiff's death, and under Order 24 Rules 1 and 2 the suit may proceed at the instance of the surviving plaintiff.
The court applied Order 24 Rule 1, which provides that death of a party does not cause abatement if the cause of action survives, and Rule 2, which permits the suit to continue at the instance of surviving plaintiffs. The claim concerned ancestral land, and the court found the cause of action survived the deceased first plaintiff.
Whether the application was brought after inordinate and inexcusable delay
The delay from 3/4/2008 to 9/10/2013 was inordinate and inexcusable, and the reasons advanced were not plausible.
The ex parte judgment was entered on 3/4/2008 but the application was not filed until 9/10/2013, over five years later. Relying on Allen v Alfred McAlpine & Sons and Agip (Kenya) Limited v Highland Tyres Limited, the court held the delay inordinate, and found it unexplained and the plaintiff's reasons implausible.
Whether the application to set aside the interlocutory judgment was merited
The application lacked merit: no draft defence to the counterclaim was exhibited to show triable issues, and the defendant as registered proprietor would be prejudiced by the suit's continued pendency.
Although Order 12 Rule 7 confers a wide discretion to set aside judgment on just terms, the applicant failed to demonstrate a plausible excuse or triable issues. No draft defence to the counterclaim was annexed, so the court could not assess any defence, and prejudice to the registered proprietor of the suit property weighed against setting aside.
Legal principles established
#- The death of a plaintiff does not cause a suit to abate where the cause of action survives to the surviving plaintiff, who may continue the suit
- The court's discretion to set aside an ex parte judgment under Order 12 Rule 7 is broad but must be exercised on just terms, to avoid injustice from accident, inadvertence or excusable mistake, and not to assist deliberate obstruction or delay
- An applicant seeking to set aside judgment must explain any inordinate delay and demonstrate triable issues, e.g. by attaching a draft defence
Court orders
#- 1.The Notice of Motion dated 9/10/2013 seeking to set aside the interlocutory judgment entered on 3/4/2008 is dismissed
- 2.Costs of the application awarded to the Defendant
- Jurisdiction invoked
- Sections 1, 1A, 1B and 3A of the Civil Procedure Act (Chapter 21, Laws of Kenya) and Order 12 Rule 7 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Karani (as a Legal Representative of the Estate of Karani Chepsongol-Deceased) v Cheboiwo[2022] KEELC 13353 (KLR)23 Sept 2022applied
- Galexon Construction Company Limited v County Government of Vihiga & 2 Others[2019] KEHC 2771 (KLR)3 Oct 2019
Cite this brief
#Cite this brief
Caselaw, "Adam Said Jumbe & Merceline Kishaga Buluma v Preston Mwakio Jumbe [2017] KEELC 212 (KLR)", Case Analysis (2017). Civil Suit No 306 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/212/eng@2017-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.