Kamau Tichu & 16 others v Ikere Gitau & 2 others [2018] KEELC 1022 (KLR)
The bottom line
#The Environment and Land Court revived a land rights petition after the respondent's death, but refused to restore protective orders without hearing the new parties.
What this practically means
#Executive summary
#Key legal issues
#Revival of a suit abated against a deceased respondent
Sufficient cause was demonstrated; the application was filed without undue delay from the administrators' appointment on 17 May 2017, so revival was warranted.
Order 24 rule 7(2) empowers the court to revive an abated suit where the applicant proves sufficient cause preventing continuation. The administrators were appointed on 17 May 2017 and the application of 12 June 2018 was made without undue delay thereafter. The court thus exercised its discretion in favour of revival of the suit against the 1st respondent.
Substitution of a deceased respondent by administrators of his estate
The deceased 1st respondent was substituted with the four administrators of his estate, with leave to amend the petition to enjoin them.
Order 24 of the Civil Procedure Rules governs abatement, substitution and revival. Letters of administration were granted on 3 May 2017 by the Chief Magistrate's Court at Naivasha over the deceased's estate. The court allowed substitution of the deceased 1st respondent by the administrators and directed amendment of the petition to enjoin them.
Restoration of conservatory orders
Refused because granting them would be ex-parte without hearing the substituted respondents.
The substituted respondents were not yet formally parties to the suit, so granting conservatory orders would effectively be ex-parte and would deny them a hearing. The court held that it would not be prudent to issue such orders before hearing them, but left the petitioners liberty to file a fresh application for conservatory orders after amending the petition, to be considered on merits.
Legal principles established
#- Under Order 24 rule 7(2), the court has discretion to revive an abated suit if the applicant proves he was prevented by sufficient cause from continuing the suit.
Court orders
#- 1.The abated suit is revived against the 1st respondent
- 2.The deceased 1st respondent is substituted with the administrators of his estate, namely Stephen Gitau Ikere, Loise Nyokabi Ikere, Lucy Nyokabi Ikere and Samuel Kibaru Ikere
- 3.The petition be amended so as to enjoin the four substituted persons into the suit
- 4.No orders as to costs
- Jurisdiction invoked
- Order 24 of the Civil Procedure Rules (abatement, substitution and revival of suits) applied to a constitutional petition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau Tichu & 16 others v Ikere Gitau & 2 others [2018] KEELC 1022 (KLR)", Case Analysis (2018). Petition dated 7 December 2011 (Application dated 12 June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1022/eng@2018-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.