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ELCDismissedNot stated in the judgment· [2018] KEELC 1083 (KLR)

Moses Mutheki Muchonjoru v District Land Registrar & 2 others [2018] KEELC 1083 (KLR)

Environment and Land Court
25 October 2018
MSMunyao Sila
1,494 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to revive a land case filed by a man's late father because the family waited over three years with no good explanation for the delay.

What this practically means

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Executive summary

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The applicant, Ian Thuku Mutheki, moved the Environment and Land Court at Nakuru by an application dated 8 May 2018 seeking to be substituted for the deceased plaintiff, his father, and ostensibly to revive the suit, which had been dismissed for want of prosecution on 22 January 2018. The underlying suit, filed on 11 July 2013, claimed that land registered in the name of the Government of Kenya for Kiamaina Primary School in 1989 measured 7.93 acres instead of the 2 acres the deceased had surrendered, and sought rectification of title or compensation for 5.93 acres. The plaintiff died on 12 October 2014; counsel informed the court of the death in February 2015 but never applied for substitution, and the suit was later dismissed for want of prosecution. The court framed two issues: substitution/revival and the dismissal for want of prosecution. Applying Order 24 of the Civil Procedure Rules, the court held that an application for substitution should be made within one year of death unless good reason is shown, and revival requires sufficient cause. The applicant obtained letters of administration ad litem only on 9 April 2018, about 3½ years after death, and blamed his erstwhile counsel without explaining his own inactivity. The court also noted the impugned title dated from 1989 and that the deceased had previously filed and withdrawn a 1999 suit over the same land. The application was dismissed and the suit remains dismissed.

Key legal issues

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01

Sufficient cause for delay in seeking substitution and revival of an abated suit

Holding

The applicant failed to demonstrate sufficient cause; a delay of over 3½ years since the plaintiff's death was not adequately explained

Reasoning

Order 24 Rule 2 requires an application for substitution within one year of death, extendable for good reason, and Rule 7 requires sufficient cause for revival. The applicant blamed his former advocate but did not explain his own inactivity from April 2014 until January 2018, nor why he did not obtain letters of administration earlier or appear on the dismissal date.

p. 2
02

Exercise of the court's discretion in setting aside dismissal for want of prosecution

Holding

The discretion was declined given the age of the disputed title, prior delay by the deceased plaintiff himself, and a previous withdrawn suit over the same land

Reasoning

Although the court has wide discretion, it considered that the impugned title was prepared in 1989, nearly 30 years earlier, and that the deceased had previously filed and withdrew a suit over the same land in 1999 without explanation. This history of delay by both the applicant and the deceased militated against exercising the discretion in the applicant's favour.

p. 2

Legal principles established

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  • An applicant seeking revival of an abated suit must show that he was prevented by sufficient cause from continuing the suit
  • Blaming erstwhile counsel is not sufficient cause where the applicant himself has taken no steps to progress the suit

Court orders

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  1. 1.Application dated 8 May 2018 dismissed
  2. 2.Suit to remain dismissed (neither revived nor the dismissal for want of prosecution set aside)

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 24 Rules 1 & 3 (Rule 2 and Rule 7 also discussed)
  • Civil Procedure ActSections 1A, 1B, 3A
Jurisdiction invoked
Order 51 Rule 1, Order 24 Rules 1 & 3 of the Civil Procedure Rules and Sections 1A, 1B and 3A 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, "Moses Mutheki Muchonjoru v District Land Registrar & 2 others [2018] KEELC 1083 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1083/eng@2018-10-25

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