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ELCAllowedNotice of Motion dated 12th July 2018 (suit filed 1987)· [2018] KEELC 583 (KLR)

Mbogori Baichu v Livingstone M’ Mungania & another [2018] KEELC 583 (KLR)

Environment and Land Court
28 November 2018
LMLucy N. Mbugua
982 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Meru revived a 31-year-old land case, ruling the plaintiff's persistent succession efforts justified the delay after the defendant died.

What this practically means

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Executive summary

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The plaintiff filed a Notice of Motion dated 12th July 2018 under Order 24 Rules 1, 4 and 7 of the Civil Procedure Rules 2010 seeking revival of a suit filed in 1987 following the death of the defendant, Livingstone M'Mungania, on 24th October 2006, and the substitution of David Gitonga M'Mungania, who had been appointed personal representative by a Grant Ad Litem issued pursuant to a ruling of 27th June 2018 in Misc. Succession Cause 159 of 2015. The respondent opposed, arguing that the Grant related to one Rutere Mbogori rather than the deceased defendant, and that reviving a suit twelve years after the defendant's death, some thirty-one years after filing, without explanation for the inordinate delay, was not warranted. The court found the suit had abated but that revival required only demonstration of sufficient cause under Order 24 Rule 7. It held the plaintiff had persistently pursued prosecution of the suit, moving through three succession applications over the years despite hurdles attributed to the intended defendant. On the Grant, the court found the reference to Rutere Mboogori was a typographical error, the Grant's heading and the succession ruling confirming it concerned the estate of Livingstone M'Mungania. The application was allowed, with the plaintiff directed to set the suit down for hearing within four months, failing which it would stand dismissed; costs of the application were to abide the outcome of the main suit.

Key legal issues

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01

Revival of an abated suit under Order 24 Rule 7

Holding

The applicant demonstrated sufficient cause; his persistent efforts through successive succession causes showed he was prevented by circumstances beyond his control from continuing the suit.

Reasoning

The suit abated following the defendant's death on 24th October 2006 after no application was made within one year under Order 24 Rule 4(2). The court held that revival under Rule 7 requires proof of sufficient cause. The plaintiff's pursuit of a Grant Ad Litem through Misc. Application 133 of 2007, Misc. Succession Cause 455 of 2008 and Misc. Succession Cause 159 of 2015 (which succeeded on 27th June 2018) showed diligence despite hurdles created by the intended defendant.

p. 2
02

Whether the Grant Ad Litem was valid despite the erroneous name

Holding

The inclusion of the name 'Rutere Mboogori' in the Grant was a typographical error; the Grant was properly in respect of the estate of Livingstone M'Mungania.

Reasoning

The court perused the Grant and the underlying ruling of 27th June 2018 in Succession Cause 159 of 2015. Although the Grant's body referenced Rutere Mboogori, its heading read 'in the matter of the estate of Livingstone M'Mungania (deceased)' and the ruling expressly appointed the respondent a personal representative of Livingstone's estate. The court agreed with counsel that the wrong name was a mere error.

p. 2

Legal principles established

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  • Under Order 24 Rule 7, an applicant seeking to revive an abated suit must demonstrate sufficient cause for failing to continue with the suit before it abated.

Court orders

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  1. 1.The application dated 12th July 2018 is allowed and the abated suit is revived
  2. 2.The plaintiff is directed to set the suit down for hearing within 4 months, failure to which the suit will stand as dismissed
  3. 3.Costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 24 Rule 1
  • Civil Procedure Rules 2010Order 24 Rule 4(1) and (2)
  • Civil Procedure Rules 2010Order 24 Rule 5
  • Civil Procedure Rules 2010Order 24 Rule 7(1) and (2)
Jurisdiction invoked
Order 24 Rules 1, 4 and 7 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, "Mbogori Baichu v Livingstone M’ Mungania & another [2018] KEELC 583 (KLR)", Case Analysis (2018). Notice of Motion dated 12th July 2018 (suit filed 1987). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/583/eng@2018-11-28

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