Joseph Kibiru Mbatia v Gicheru Mbatia & 4 others [2018] KEELC 2542 (KLR)
The bottom line
#Kenya's Environment and Land Court revived a land suit against a deceased defendant, but said only the High Court's Family Division can force a family to take out letters of administration.
What this practically means
#Executive summary
#Key legal issues
#Whether the abated suit against the deceased should be revived
Revival granted; the applicant showed sufficient cause - the widow and children refused to take out letters and the registry rejected his own application for want of a chief's letter
Order 24 Rule 7(2) requires proof of sufficient cause preventing continuation of the suit. The applicant's uncontroverted affidavit showed the deceased died in 2015, the family declined to take out letters of administration, and his own attempt failed because the registry required a chief's letter which the chief refused as he was not a beneficiary. Lack of a legal representative of the deceased defendant constituted sufficient cause.
Whether the court can compel the deceased's widow and children to take out letters of administration and enjoin them as representatives
Declined for want of jurisdiction; the remedy lies in the Family Division of the High Court
The court held that compelling the widow and children to take out letters of administration is a succession matter reserved for the Family Division of the High Court. Having declined prayer (2), the court also declined prayer (3) seeking their joinder as representatives, since it was dependent on the grant being obtained.
Legal principles established
#- A suit that has abated against a deceased defendant may be revived where the plaintiff proves sufficient cause for not proceeding, under Order 24 Rule 7(2)
- An Environment and Land Court has no jurisdiction to compel persons to take out letters of administration; that power rests with the Family Division of the High Court
Court orders
#- 1.Prayer (1) of the Notice of Motion dated 5th October 2016 allowed - revival of the suit against the deceased and extension of time
- 2.Costs of the application to be costs in the suit
- Jurisdiction invoked
- Civil Procedure Rules, Order 24 Rule 7(2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kibiru Mbatia v Gicheru Mbatia & 4 others [2018] KEELC 2542 (KLR)", Case Analysis (2018). Notice of Motion dated 5th October 2016 (suit over LR No. Dagoretti/Waithaka/508). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2542/eng@2018-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.