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ELCDismissedNotice of motion dated 24/10/2016 (Murang'a ELC suit)· [2018] KEELC 3961 (KLR)

Jacob Mbuthia Githaiga & 4 others v Ephantus Githaiga Kabuku & 2 others [2018] KEELC 3961 (KLR)

Environment and Land Court
23 February 2018
JKJ G Kemei
1,894 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Murang'a dismissed a bid to amend a land suit because the case had already died by dismissal and abatement.

What this practically means

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Executive summary

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The applicants, brothers of the original defendant, sought leave under Order 8 rule 3 of the Civil Procedure Rules to amend their plaint in a land dispute over LR.19/KIAWAMBOGO/152, later subdivided into LR.LOC/KIAWAMBOGO/1728 and 1729, so as to correct an arithmetic error in the combined acreage (which should have been 17.3 acres) and share all their late father Githaiga Mururia's land equally among five brothers, and to substitute parties who had died. The respondents opposed, contending the suit had abated on 28/02/2004, that orders issued then had not been vacated, and that any amendment was time-barred under the Limitation of Actions Act. The Court traced the history: dismissal by Kuloba J on 31/5/2000 for want of prosecution; reinstatement proceedings before Aluoch J who on 19/07/2004 gave a last chance to fix the suit for hearing within 30 days, failing which it would stand dismissed. The hearing date taken was beyond the 30 days and no withdrawal of that order or further extension was evident, so the suit stood dismissed and post-lapse proceedings were a nullity. The defendant died in February 2005; no substitution application or extension of time was made within one year, so the suit abated by operation of law, no order declaring abatement being necessary (following M'mboroki M'arangacha). Borrowing Lord Denning's statement in MacFoy v United Africa Co. Ltd, the Court held pleadings in a non-existent suit cannot be amended, dismissed the application with no order as to costs, and ordered the file closed and taken to the archives.

Key legal issues

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01

Effect of an unvacated conditional dismissal order

Holding

The order of Aluoch J of 19/07/2004 dismissing the suit on failure to fix it for hearing within 30 days was never vacated, so the suit stood dismissed

Reasoning

The Court found no evidence on the record of withdrawal of the 19/07/2004 order nor of any application for further extension of time. Proceedings held after the lapse of that order were a nullity because they proceeded on a dismissed suit. The 19/07/2004 order therefore stands.

p. 2
02

Abatement on failure to substitute a deceased defendant

Holding

The suit abated by operation of law one year after the defendant's death in February 2005, with no substitution or extension of time

Reasoning

Order 24 rule 4 requires an application within one year of death to join the deceased defendant's legal representative. No such application, nor one for extension of time, was made. Abatement takes effect by its own force; no court order declaring it is required, and where a suit abates no fresh suit may be brought on the same cause of action.

p. 2
03

Amendment of pleadings in a dead suit

Holding

Leave to amend cannot be granted where the suit is dismissed and abated

Reasoning

Since an abated suit ceases to exist in the eyes of the law, being a nullity requiring no court order to set aside (per Lord Denning in MacFoy v United Africa Co. Ltd), there are no live pleadings capable of amendment. The proper course would have been to seek withdrawal of the 19/07/2004 order and revival of the abated suit before any substitution or amendment.

p. 2

Legal principles established

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  • An order recording abatement of a suit is not necessary; abatement occurs by operation of law
  • Pleadings in an abated suit cannot be amended because the suit no longer exists
  • Where no application to join the legal representative of a deceased sole defendant is made within one year, the suit abates

Court orders

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  1. 1.The application dated 24/10/2016 is dismissed
  2. 2.No order as to costs
  3. 3.The file is ordered to be closed and taken to the archives

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 rule 3
  • Civil Procedure RulesOrder 24 rule 1
  • Civil Procedure RulesOrder 24 rule 2
  • Civil Procedure RulesOrder 24 rule 4
  • Limitation of Actions Actnot specified

Cases cited (2)

  • M’mboroki M’arangacha v Land Adjudication Officer, Nyambene and 2 others
    Meru H.C.C. Application No.45 of 1997
  • MacFoy v United Africa Co. Limited
    (1961) 3 All ER 1169
Jurisdiction invoked
Order 8 rule 3 of the Civil Procedure Rules (application to amend pleadings); Order 24 rules 1, 2 and 4 on suits abating on death of a party

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, "Jacob Mbuthia Githaiga & 4 others v Ephantus Githaiga Kabuku & 2 others [2018] KEELC 3961 (KLR)", Case Analysis (2018). Notice of motion dated 24/10/2016 (Murang'a ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3961/eng@2018-02-23

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