Kamau Tichu & 16 others v Ikere Gitau, Attorney General & Commissioner of Land [2017] KEELC 236 (KLR)
The bottom line
#A Kenyan court confirmed that a lawsuit automatically dies against a party who dies, if they aren't replaced within one year — no extension is possible.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has power to extend time for substitution after a suit has abated
The application was dismissed; abatement occurs automatically by operation of law after one year and cannot be extended, and no provision allows extension of time to obtain a legal representative.
Order 24 Rule 4(3) of the Civil Procedure Rules, imported into petitions under the Constitution of Kenya (Enforcement of Fundamental Rights and Freedoms) Rules 2013 which are silent on abatement, provides that a suit abates where no substitution application is made within one year of death. That abatement is automatic and the court lacks discretion to postpone it. The only remedy is an application to revive the abated suit under Order 24 Rule 7(2) upon showing sufficient cause, which is not the relief sought here.
The fate of interim conservatory orders upon abatement
The interim conservatory orders granted against the deceased 1st respondent were vacated since the petitioners cannot continue enjoying them against a litigant in respect of whom the suit has abated.
The conservatory orders had been in place since the petition's inception and extended from time to time. Because the suit is now abated against the 1st respondent, the petitioners cannot continue enjoying interim orders against him; the court therefore vacated them. The petitioners may still proceed against the 2nd and 3rd respondents, but no orders can affect the 1st respondent.
Legal principles established
#- Abatement of a suit upon death of a litigant where no substitution is made within one year occurs automatically by operation of law and the court cannot extend or postpone that period.
- An abated suit may be revived under Order 24 Rule 7(2) where sufficient cause is shown, but the law does not envisage extension of time to obtain a legal representative.
Court orders
#- 1.The application dated 12 October 2017 seeking extension of time for substitution of the deceased 1st respondent is dismissed
- 2.The suit is marked as abated against the 1st respondent
- 3.The interim conservatory orders on record are vacated
- 4.No orders as to costs
- Jurisdiction invoked
- Constitutional petition under Articles 20, 21, 40, 45, 47, 48 and 73 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau Tichu & 16 others v Ikere Gitau, Attorney General & Commissioner of Land [2017] KEELC 236 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/236/eng@2017-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.