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ELCAllowedOriginating Summons (application dated 4/4/2014)· [2017] KEELC 1587 (KLR)

Njuguna Mwaura Mbogo v EK Banks Limited [2017] KEELC 1587 (KLR)

Environment and Land Court
6 October 2017
BEB M Eboso
4,813 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a defendant to substitute a deceased plaintiff's heirs and revive an abated land suit, years after the plaintiff's death.

What this practically means

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Executive summary

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This first-instance ruling by the Environment and Land Court (Eboso J) determined the defendant's notice of motion dated 4/4/2014 seeking to enjoin the administrators of the estate of the deceased plaintiff as interested parties to an adverse-possession suit. The deceased plaintiff had obtained an ex parte judgment in 2003 (Hayanga J) declaring him owner of approximately 561 acres in Nakuru County, and died in 2006 while his application to set aside that judgment was pending. The suit abated. The defendant's successive applications for substitution and revival were struck out by Ougo J (28/3/2012) as premature, its review dismissed (21/9/2012), and its revival application dismissed by Mutungi J (29/4/2013) on the basis that revival follows substitution. The court framed four issues: res judicata, jurisdiction, availability of substitution to a defendant in an abated suit, and satisfaction of the Order 24 rule 3 criteria. It held that the application was not res judicata because the earlier substitution application was struck out without determination on the merits; that the court had jurisdiction since prior rulings were only procedural guidelines and refusing the application would deny access to justice under Articles 40, 50 and 159; that substitution under Order 24 rule 3 is the defendant's only available remedy and automatically revives the abated suit; and that good reason for extension of time was shown. The court substituted the administrators as plaintiffs, deemed the suit revived, and ordered costs in the cause.

Key legal issues

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01

Whether the application is res judicata

Holding

Not res judicata; the earlier application for substitution was struck out as premature without determination on its merits.

Reasoning

The court reasoned that res judicata attaches only to issues litigated and substantively determined. Judge Ougo's ruling struck out the substitution application as premature and incompetent without addressing its merits, so no issue was finally decided. Judge Mutungi's ruling concerned a revival application, a different relief. The doctrine of res judicata under Section 7 of the Civil Procedure Act therefore cannot bar the present substitution application.

p. 5
02

Whether the court has jurisdiction to entertain the application

Holding

The court is properly seized of the application; the earlier rulings were procedural guidelines, not substantive determinations.

Reasoning

The court held that procedural rulings give guidelines which parties are expected to follow. The defendant complied successively with contradictory guidelines from Judge Ougo and Judge Mutungi. Denying the defendant a hearing would offend Articles 40, 50 and 159 of the Constitution. Had Judge Ougo substantively determined the substitution application, the court would lack jurisdiction; that was not the case here.

p. 6
03

Whether substitution of a deceased plaintiff is available to a defendant in an abated suit

Holding

Yes; substitution under Order 24 rule 3 is the only remedy available to a defendant, and it automatically revives the abated suit.

Reasoning

On a reading of Order 24 rules 1, 2, 3 and 7, any party may apply for substitution of a deceased party within one year, extendable for good reason. The revival relief under rule 7(2) is confined to a legal representative, trustee or official receiver of a deceased or bankrupt plaintiff. Because no fresh suit may be brought on the same cause of action after abatement, the defendant's only route to challenge the ex parte judgment is substitution, which operates as automatic revival.

p. 7
04

Whether the criteria for substitution and revival under Order 24 rule 3 were satisfied

Holding

Good reasons were tendered; the delay was not intentional and the ends of justice justified allowing substitution.

Reasoning

The court noted the defendant's diligent sequence of applications from 2007, its disadvantaged position in ascertaining personal representatives, and that the administrators only took out a grant after the suit had abated. Exercising its discretion judicially in the context of Articles 48, 50 and 159 of the Constitution and Sections 1A and 1B of the Civil Procedure Act, the court found the unique circumstances justified allowing substitution and automatic revival.

p. 8

Legal principles established

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  • Res judicata only becomes operative where an issue has been substantively determined on the merits; an application struck out as premature is not res judicata.
  • The remedy of revival of an abated suit under Order 24 rule 7 is not available to a defendant; a defendant's only route is an application for substitution under rule 3, and substitution automatically revives the abated suit.
  • The court's discretion to extend time for substitution under the proviso to Order 24 rule 3 requires good reason.

Court orders

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  1. 1.Elizabeth Nyambura Njuguna and Francis Kamau Njuguna substituted as plaintiff in place of the late Njuguna Mwaura Mbogo
  2. 2.The suit deemed revived by dint of the substitution
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 48, 50, 40, 159
  • Civil Procedure ActSection 7; Sections 1A and 1B
  • Civil Procedure RulesOrder 24 Rules 1, 2, 3, 7

Cases cited (3)

  • John Florence Maritime Services Limited & Anor v Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • Henderson v Henderson
    (1843) 67 ER 313
  • Said Sweilem Gheithan Saanum v Commissioner of Lands [being sued through Attorney General] & 5 Others
    (2015) eKLR
Jurisdiction invoked
Articles 48, 50, 159 and 40 of the Constitution of Kenya read with Sections 1A and 1B of the Civil Procedure Act and Order 24 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, "Njuguna Mwaura Mbogo v EK Banks Limited [2017] KEELC 1587 (KLR)", Case Analysis (2017). Originating Summons (application dated 4/4/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1587/eng@2017-10-06

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