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ELCDismissedNot stated in judgment (ruling on Notice of Motion dated 26/03/2018 arising from suit over Loc 12/Subloc 4/1166)· [2018] KEELC 2263 (KLR)

Ikumbi Estate Investment Limited v John Mbogo Nyambura [2018] KEELC 2263 (KLR)

Environment and Land Court
31 July 2018
1,522 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Murang'a land court dismissed a bid to review earlier orders, confirming that only the court where a suit is pending can decide whether it has abated.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Murang'a (J.G. Kemei, J) delivered on 31st July 2018 on the Plaintiff/Applicant's Notice of Motion dated 26th March 2018 seeking review and/or setting aside of the court's orders of 8th March 2018. Those earlier orders had set aside interlocutory judgment against the Defendant, deemed his defence properly filed, granted a temporary injunction against the Plaintiff, and stayed the suit pending hearing and disposal of Kangema SRMCC No. 33 of 1994. The Applicant argued that neither party to the present suit was a party to the Kangema suit, that the Kangema suit had abated following the deaths of parties therein, and that the Magistrate directed by the High Court in Civil Appeal No. 92 of 2001 to hear the matter afresh might no longer be available. The Respondent opposed, contending the issues were addressed in the earlier ruling, that he had obtained letters of grant ad litem and taken steps to prosecute the Kangema matter, and that abatement is a matter for the Kangema Court. The court held that the claimed new evidence was unsubstantiated by any court record, that the death of the Defendant's mother was already known before the earlier ruling, and that the Respondent's steps to revive the Kangema matter were not credibly challenged. It further held that abatement can only be determined by the Kangema Court, and that the availability of the named Magistrate could be verified with the Judicial Service Commission. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the requirements for review under Order 45 Rule 1 were met

Holding

They were not met; the alleged new evidence was not credible and the matters raised were already addressed in the ruling of 8th March 2018

Reasoning

The court found the claimed new evidence was a letter with no court record to confirm abatement, and that the death of the Defendant's mother was already known to the court before the earlier ruling. The Respondent's evidence that he had obtained letters of administration ad litem and taken steps to prosecute the Kangema matter was not credibly challenged, so the court had no reason to disbelieve him.

p. 2
02

Whether this Court can determine abatement of SRMCC No. 33 of 1994

Holding

It cannot; only the Kangema Court can determine whether that suit abated

Reasoning

The applicant relied on a letter from advocates asserting the Kangema suit had abated, but produced no court record. The court held that abatement is a matter for the court where the suit is pending, and further noted the Respondent had obtained grant ad litem and taken steps to prosecute the matter pursuant to the High Court orders in Civil Appeal No. 92 of 2001.

p. 2
03

Whether the alleged unavailability of the named Magistrate justified review

Holding

The argument was unfounded; availability can be verified with the Judicial Service Commission and review of the appellate orders is available if needed

Reasoning

The court held it is easy to establish from the Judicial Service Commission whether Magistrate H.N. Ndung'u is still in service, and in the unlikely event she is unavailable, the parties may apply for review of the appellate court's orders and have the matter heard by another magistrate of similar jurisdiction.

p. 2

Legal principles established

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  • The issue of abatement of a suit can only be determined by the court in which that suit is pending, not by another court
  • A suit abates upon death of a party where no substitution application is made within one year, but the law allows extension of time upon application

Court orders

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  1. 1.The application dated 26th March 2018 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1
Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules (review of orders)

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, "Ikumbi Estate Investment Limited v John Mbogo Nyambura [2018] KEELC 2263 (KLR)", Case Analysis (2018). Not stated in judgment (ruling on Notice of Motion dated 26/03/2018 arising from suit over Loc 12/Subloc 4/1166). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2263/eng@2018-07-31

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