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ELCDismissedCitation Cause No. 454 of 2005 (application dated 13th June 2016)· [2017] KEELC 2321 (KLR)

Mourice Maina L. Muhanga & another v Mufoyongo M. Muhanga (Dcd) & another [2017] KEELC 2321 (KLR)

High Court of Kenya
18 July 2017
NMN. A. Matheka
867 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kakamega dismissed an attempt to revive a land suit against a deceased defendant because the applicants waited too long without explaining the delay.

What this practically means

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Executive summary

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The applicants, plaintiffs in a land suit against the late Mufoyongo N. Muhanga, applied by notice of motion dated 13th June 2016 under Order 24 rules 4 and 7(2) and Order 50 rule 6 of the Civil Procedure Rules, together with Sections 1A and 1B of the Civil Procedure Act, for extension of time to substitute the deceased defendant and for the substitution of Regina Alice Mufoyongo, the holder of a grant in Kakamega HC Succession Cause No. 836 of 2006, as the defendant's legal representative. The applicants explained that upon learning of the defendant's death they cited the respondent in 2005 to take out letters of administration, but she concealed the fact that she had obtained a grant on 19th March 2007, disclosing it only on 4th June 2013 through her advocates. The respondent opposed the application, contending there was no suit to revive because the suit property, Isukha/Shitoto/636, had been subdivided in 2000 into new titles, some registered to third parties, including the estate of the late Simon Anthony Khamasi and Patrick L. Shipwoni, who were not parties; proceeding without them would violate natural justice. The court found it undisputed that the respondent held the grant, but held that the delay from 2014 to 2017 in prosecuting the application was inordinate and unexplained, amounting to an abuse of the court's due process. The application was dismissed with costs on 18th July 2017.

Key legal issues

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01

Whether to extend time for substitution of a deceased defendant and revive the suit

Holding

The application was dismissed for inordinate and unexplained delay; the court declined to extend time or substitute the respondent

Reasoning

The court accepted that the respondent was the legal representative of the deceased defendant by virtue of a grant issued in Kakamega HC Succession Cause No. 836 of 2006. However, the applicants learned of the grant on 4th June 2013 yet filed the substitution application only in 2014, with the matter still pending in 2017. No proper reasons were tendered for this delay. The court held the delay was inordinate and an abuse of the court's due process, rendering the application meritless.

p. 3

Legal principles established

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  • Inordinate and unexplained delay in bringing a substitution application amounts to an abuse of the due process of the court and justifies dismissal

Court orders

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  1. 1.The application dated 13th June 2016 was dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rules 4 and 7(2)
  • Civil Procedure RulesOrder 50 rule 6
  • Civil Procedure ActSections 1A and 1B
Jurisdiction invoked
Order 24 rules 4 and 7(2) and Order 50 rule 6 of the Civil Procedure Rules; Sections 1A and 1B of the Civil Procedure Act

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, "Mourice Maina L. Muhanga & another v Mufoyongo M. Muhanga (Dcd) & another [2017] KEELC 2321 (KLR)", Case Analysis (2017). Citation Cause No. 454 of 2005 (application dated 13th June 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2321/eng@2017-07-18

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