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ELCPartially AllowedNot stated in the judgment· [2017] KEELC 3024 (KLR)

Kinyanjui Wathiari & 3 others v Gichana Gathuku [2017] KEELC 3024 (KLR)

High Court of Kenya
17 March 2017
MGMARY M. GITUMBI
501 words in judgment
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The bottom line

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When every plaintiff in a Kenyan lawsuit dies and no one substitutes their estate within one year, the case automatically dies with them.

What this practically means

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Executive summary

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The court (Mary M. Gitumbi J) determined the Defendant/Applicant's Amended Notice of Motion dated 14th July 2015, in which he sought a declaration that the suit had abated following the deaths of the 1st to 4th Plaintiffs without substitution of their legal representatives, together with orders lifting or setting aside the court's orders of 23rd June 2010, including an inhibition over land parcel Githunguri/Ikinu/657, and, in the alternative, striking out the suit for failure to extract and serve summons to enter appearance for over five years. The application, supported by the Applicant's affidavits, was unopposed. Counsel's submissions recorded the deaths: the 3rd Plaintiff in 1993, the 4th Plaintiff on 2nd September 2010, the 2nd Plaintiff on 26th July 2010 and the 1st Plaintiff on 14th February 2014. Relying on Order 24 Rule 4(1) of the Civil Procedure Rules 2010, the court noted that the cause of action of a deceased plaintiff survives to his legal representatives, who must be formally substituted, and under Order 24 Rule 4(3)(2) substitution must occur within one year of death, failing which the suit abates as regards that plaintiff. On perusal of the file the court found no application for substitution filed by February 2015, one year after the last plaintiff's death, and held that any later application would be outside the allowable period. The court declared the suit abated in respect of all the plaintiffs and allowed the application with costs to the Defendant.

Key legal issues

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01

Abatement of suit on death of plaintiffs without substitution

Holding

The suit abated in respect of all the plaintiffs as no application for substitution was filed within one year of the death of the last plaintiff

Reasoning

Under Order 24 Rule 4(1) of the Civil Procedure Rules 2010, where one of several plaintiffs dies the cause of action survives to the legal representatives of the deceased, who must be formally substituted to proceed with the suit. Order 24 Rule 4(3)(2) sets a one-year limit for substitution, after which the suit abates as regards the deceased plaintiff. All four plaintiffs died between 1993 and 2014, and by February 2015 (one year after the last death) no substitution application had been filed; any later application would be out of time.

p. 2

Legal principles established

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  • Where several plaintiffs have died and no application to substitute their legal representatives is filed within one year of the death of the last plaintiff, the suit abates in respect of the deceased plaintiffs

Court orders

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  1. 1.The suit was declared abated in respect of all the Plaintiffs
  2. 2.The suit stands as abated
  3. 3.The Application was allowed with costs to the Defendant

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 24 Rule 4(1)
  • Civil Procedure Rules 2010Order 24 Rule 4(3)(2)
Jurisdiction invoked
Not stated in the judgment

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, "Kinyanjui Wathiari & 3 others v Gichana Gathuku [2017] KEELC 3024 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3024/eng@2017-03-17

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