Ikumbi Estate Investment Limited v John Mbogo Nyambura [2018] KEELC 2263 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the requirements for review under Order 45 Rule 1 were met
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
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.
Whether this Court can determine abatement of SRMCC No. 33 of 1994
It cannot; only the Kangema Court can determine whether that suit abated
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.
Whether the alleged unavailability of the named Magistrate justified review
The argument was unfounded; availability can be verified with the Judicial Service Commission and review of the appellate orders is available if needed
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.
Legal principles established
#- 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
#- 1.The application dated 26th March 2018 is dismissed
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Order 45 Rule 1 of the Civil Procedure Rules (review of orders)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.