Charles Kamau Karanja v District Land Surveyor & 3 others [2018] KEELC 1696 (KLR)

Environment and Land Court

20 September 2018

MSMUNYAO SILA

411 words in judgment

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The bottom line

Kenya's Environment and Land Court revived a land suit against a deceased defendant, showing courts will substitute his estate's administrator even after long delays.

What this practically means

Executive summary

This was an application dated 29 June 2017 by Virginia W. Njoroge seeking to be substituted for Ayub Njoroge Wainaina, the 3rd defendant in the suit, who died on 21 July 2014, and for revival of the suit which had abated against him. The underlying suit was commenced by plaint filed on 6 November 2013 against the District Land Surveyor of Nakuru District, the District Land Registrar and the 3rd defendant. The plaintiff alleged that the late Ayub had filed a boundary dispute before the Bahati Land Disputes Tribunal in 2000, which made an award in his favour; the plaintiff's appeal, HCCA No. 41 of 2001, was said to be still pending. Despite this, the 3rd defendant was alleged to have been trespassing on the plaintiff's land by marking new boundaries, and the plaintiff sought orders restraining the defendants from interfering with land parcel Bahati/Bahati Block 1/395. The court considered the Certificate of Death, the Certificate of Grant of Letters of Administration issued to the applicant on 25 October 2015, and a confirmed grant issued on 30 September 2016, and noted that no party contested the applicant's capacity. Although the applicant gave no good reason for filing the application about two years after receiving the grant, the court, in its discretion, allowed the application, ordered substitution of the applicant for the deceased 3rd defendant, and revived the abated suit. It made no orders as to costs.

Key legal issues

Whether the applicant had capacity to be substituted for the deceased 3rd defendant

Holding

Yes; she held a certificate of grant of letters of administration and a confirmed grant, and no one contested her capacity

Reasoning

The court examined the Certificate of Death showing the 3rd defendant died on 21 July 2014, the grant of letters of administration issued to the applicant on 25 October 2015, and the confirmed grant of 30 September 2016. Finding no contest to the applicant's capacity, the court exercised its discretion to allow substitution of the deceased party.

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Whether the abated suit should be revived despite the delay in bringing the application

Holding

Yes; the court, in its discretion, allowed revival of the abated suit despite the two-year delay after the grant

Reasoning

The applicant did not explain why the application was filed about two years after she received the grant of letters of administration. Nonetheless, the court held that in its discretion it would allow the revival of the suit abated against the deceased 3rd defendant, and ordered substitution of the applicant in place of the deceased.

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Legal principles established

A court may in its discretion allow revival of a suit abated against a deceased defendant even where the applicant has not given good reason for delay in applying for substitution.

Court orders

1.That the deceased 3rd defendant, Ayub Njoroge Wainaina, be substituted with the applicant, Virginia W. Njoroge
2.That the abated suit against the 3rd defendant be revived
3.No orders as to costs

Jurisdiction invoked: Inherent discretion to allow substitution of a deceased party and revival of an abated suit (inherent powers of the court; no specific constitutional or statutory provision invoked in the judgment)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Charles Kamau Karanja v District Land Surveyor & 3 others [2018] KEELC 1696 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1696/eng@2018-09-20

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