Michael Wafula Khaemba v Patrick Chepkondoli Mustuni & another [2018] KEELC 1312 (KLR)
The bottom line
#A Kenyan court struck out an attempt to replace a deceased land claimant because no substitution application was filed within one year of his death.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit abated under Order 24 Rule 3(2) of the Civil Procedure Rules
The suit abated because the substitution application was filed eighteen months after the deceased's death, beyond the one-year period prescribed
Order 24 Rule 3(1) requires the deceased plaintiff's legal representative to be joined where the cause of action survives, and Rule 3(2) provides that failure to apply within one year causes the suit to abate. The deceased died on 20th August 2016 and the application was filed on 14th February 2018, eighteen months later, so the suit abated by operation of law.
Whether time could be enlarged under Order 50 Rule 6 to save the late substitution application
Enlargement of time was refused because in the absence of a subsisting suit the extension would serve no purpose
Although the application itself was dated 12th July 2017, within the one-year period, it was only filed on 14th February 2018. Counsel urged the court to enlarge time under Order 50 Rule 6, but the court held that once a suit has abated it is dead, and extending time would be an academic exercise; the proper course was first to apply for revival of the suit under Order 24 Rule 7(2).
Legal principles established
#- Where no application for substitution of a deceased sole plaintiff is made within one year of death, the suit abates as against the deceased plaintiff and becomes dead and non-existent, and a substitution application filed outside that period without first reviving the suit is incompetent
Court orders
#- 1.The Notice of Motion dated 12th July 2017 and filed on 14th February 2018 is struck out
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Order 24 of the Civil Procedure Rules (substitution of a deceased sole plaintiff)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Wafula Khaemba v Patrick Chepkondoli Mustuni & another [2018] KEELC 1312 (KLR)", Case Analysis (2018). Originating Summons filed 15th August 2014 (Notice of Motion dated 12th July 2017, filed 14th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1312/eng@2018-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.