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ELCDismissedNotice of Motion dated 10.4.2015 (Murang'a; arising from Murang'a PMCC No. 234 of 1998)· [2017] KEELC 486 (KLR)

Donald Mwangi Njoroge v Lucy Wanjiru Karanja (legal representative of the late John Mwangi Karanja) [2017] KEELC 486 (KLR)

High Court of Kenya at Murang'a
18 December 2017
2,289 words in judgment
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The bottom line

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Kenya's High Court ruled that once a suit abates a year after a party's death, it must first be revived before any substitution can be validly made.

What this practically means

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Executive summary

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The Applicant, plaintiff in Murang'a PMCC No. 234 of 1998, moved the High Court by Notice of Motion dated 10.4.2015 seeking leave to lodge an appeal out of time against a ruling of 24.1.2014 in which the trial court declined to substitute the Respondent (widow and legal representative of the deceased defendant, John Mwangi Karanja) in place of her late husband. He explained that the ruling was delivered without notice to him or his counsel and that he learned of it on being served with a bill of costs, attributing further delay to the typing of proceedings. The Respondent opposed, contending the delay was inordinate, that counsel had knowledge of the ruling, and that the suit had long abated since no substitution was sought within one year of the defendant's 2001 death. J.G. Kemei J accepted that the Applicant lacked notice of the delivery date, and excused the overall delay under section 79G of the Civil Procedure Act. However, the court found the suit had abated by operation of law one year after the defendant's death and was never revived; following Kenya Farmers Cooperative Union Limited v Charles Murgor, it held that revival must precede any substitution order, and a substitution order before revival would be a nullity for want of jurisdiction. The intended appeal therefore had no prospects. The application was dismissed with costs to the Respondent on 18 December 2017.

Key legal issues

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01

Whether the applicant had notice of the delivery of the ruling

Holding

The Applicant's claim of ignorance of the ruling was consistent with the record, as the ruling date was moved without notice and his counsel was absent when it was delivered on 24.1.14

Reasoning

The Magistrate originally gave ruling date as 10.1.14; it was delivered on 24.1.14 with no notice on file of the new date, and in the presence of counsel holding brief for the other side. The explanation that knowledge came on receipt of a taxation hearing notice was consistent with the record, so lack of notice was accepted as explanation for the initial delay.

p. 3
02

Whether the delay in filing was inordinate and excusable

Holding

Although the delay would ordinarily be inordinate, the court found no fault given section 79G excludes time for obtaining a copy of the decree or order

Reasoning

The application was filed 1 year 3 months after the ruling. The Applicant had applied for typed proceedings on 23.7.14 and obtained a certificate of delay. The court noted he should have filed the memorandum of appeal immediately on learning of the ruling, since the ruling itself was what was critical, but applying section 79G it excused the delay.

p. 3
03

Whether the suit having abated barred the intended appeal

Holding

The application was dismissed because the lower court suit abated by operation of law one year after the Defendant's death and was never revived, leaving no live cause of action and rendering substitution impossible

Reasoning

The Defendant died in 2001; no substitution application was made within one year, so the suit abated in 2002. By the 2012 substitution application the suit had been abated over 10 years. A land claim is not personal and survived death, but revival must precede substitution; substitution before revival would be a nullity for want of jurisdiction. The intended appeal therefore had no prospects.

p. 4

Legal principles established

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  • There must first be an application for revival of a suit after abatement before any order for substitution; a substitution order before revival is a nullity for want of jurisdiction
  • Under Order 24 rule 4(3) of the Civil Procedure Rules, if no application for substitution is made within one year after death of a party the suit abates

Court orders

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  1. 1.The application dated 10.4.15 for leave to lodge an appeal and extension of time is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure Rules, 2010Order 43 rule 1(a) and (m)
  • Civil Procedure Rules, 2010Order 24 rule 4(2) and 4(3)
  • Civil Procedure Rules, 2010Order 24 rule 7(2)

Cases cited (3)

  • Shah Vs Mbogo & Anor
    HCCC No. 1087 of 1965
  • Kenya Farmers' Cooperative Union Limited vs Charles Murgor
    HCCC No. 1671 of 1994
  • Wallace Kinuthia Vs Anthony Ndungu & 2 others
    ELC No. 542 of 1999
On appeal from
Chief Magistrate's Court, Murang'a
PMCC No. 234 of 1998
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Order 43 rule 1(a) and (m) of the Civil Procedure Rules, 2010

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, "Donald Mwangi Njoroge v Lucy Wanjiru Karanja (legal representative of the late John Mwangi Karanja) [2017] KEELC 486 (KLR)", Case Analysis (2017). Notice of Motion dated 10.4.2015 (Murang'a; arising from Murang'a PMCC No. 234 of 1998). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/486/eng@2017-12-18

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