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ELCDismissedNot stated in the judgment· [2018] KEELC 1194 (KLR)

Kareri Murichu v Wilson Muniu & another [2018] KEELC 1194 (KLR)

Environment and Land Court
25 October 2018
682 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 swap a deceased defendant for a new one, ruling that new trespass claims need their own separate lawsuit.

What this practically means

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Executive summary

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In a 1995 suit over land at Nairobi, the plaintiff Kareri Muricho moved the court by notice of motion dated 18/1/2018 seeking leave to substitute Hannah Wanjiru for the 1st defendant Wilson Muniu, alleged to have died after the filing of the suit, and to have her join and participate in the hearing. Counsel for the applicant, Ms Muigai, argued that Hannah Wanjiru was sought not as a personal representative but as the person now occupying and trespassing on the suit property, so a fresh suit was unnecessary. Counsel for the 2nd defendant, Mr Kinyanjui, opposed the application as speculative for want of proof of death, and argued that the claim against the 1st defendant had abated 12 months after death and that any trespass claim against Hannah Wanjiru was statute barred. The court noted that although it had directed the filing of a supplementary affidavit exhibiting the death certificate, none was filed, and no draft amended plaint disclosing the dates of the alleged trespass was annexed. Holding that without evidence of death it could not tell whether the claim against the 1st defendant subsisted or had abated, and that post-suit trespass was a separate cause of action to be pursued outside substitution, the court declined the orders sought and directed mention before the Deputy Registrar on 29/10/2018 to fix a hearing date.

Key legal issues

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01

Whether substitution of a deceased defendant could be granted

Holding

The application for substitution was refused because no death certificate or other evidence of death was exhibited, leaving it unclear whether the claim against the 1st defendant still subsists or has abated.

Reasoning

The applicant sought to replace the deceased 1st defendant with Hannah Wanjiru. The court had directed the applicant to file a supplementary affidavit exhibiting the death certificate, but none was filed. Without proof of death the court could not determine whether the claim subsisted or had abated 12 months after death, and the draft amended plaint disclosing the alleged trespass dates was also not annexed.

p. 1
02

Whether post-suit trespass by the proposed substitute is properly brought by substitution

Holding

Alleged acts of trespass committed after the filing of the suit constitute a separate and distinct cause of action that must be pursued in a separate suit, not through substitution.

Reasoning

Counsel for the applicant argued Hannah Wanjiru was joined as the current occupier trespassing on the suit property, not as a personal representative. The court held that if the trespass occurred after filing suit, it is a new cause of action outside the substitution framework, which exists to continue claims against a deceased defendant's estate rather than to introduce new wrongdoers.

p. 2

Legal principles established

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  • Acts of trespass committed by a person after the filing of a suit constitute a separate and distinct cause of action which cannot be brought in through substitution of a deceased defendant.
  • By operation of law, a claim against a deceased defendant abates upon expiry of 12 months from the date of death.

Court orders

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  1. 1.The orders sought in the notice of motion dated 18/1/2018 are declined
  2. 2.The matter be mentioned before the Deputy Registrar on Monday 29/10/2018 to fix a hearing date before one of the judges serving at Milimani during the service week
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (provision 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, "Kareri Murichu v Wilson Muniu & another [2018] KEELC 1194 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1194/eng@2018-10-25

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