Amos Munyao Mukua v J. Mutua Munyao & 3 others [2018] KEELC 4379 (KLR)

Environment and Land Court

2 March 2018

OAO.A. ANGOTE

410 words in judgment

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The bottom line

A Kenyan land suit was permanently dismissed because the lawyer missed the hearing without proof of why and failed to substitute the deceased plaintiff in time.

What this practically means

Executive summary

The plaintiff moved by Notice of Motion dated 24th May, 2017 seeking reinstatement of the suit, which had been dismissed for non-attendance, and costs in the cause. The application was grounded on the claim that plaintiff's counsel was attending to another matter before Kemei J. and by the time he came to court the matter had been dismissed. An affidavit of the plaintiff's advocate disclosed that the plaintiff had died after tendering evidence. The defendants did not oppose the application. The court traced the history: on 30th March, 2017, at a notice to show cause, counsel informed the court of the plaintiff's death and was directed to file a substitution application within 31 days, with hearing set for 24th May, 2017. On that date neither party's advocates attended; the file was placed aside until 10:30 a.m. and the matter was dismissed. The court found no evidence supporting counsel's claim of being engaged in the High Court, and observed that even if true, counsel would have had time to attend after 10:30 a.m. Critically, counsel had not complied with the order to file a substitution application within 31 days, and since the plaintiff died on 10th September, 2015, the suit had abated. The application was dismissed with no order as to costs, and the suit was declared dismissed.

Key legal issues

Whether the suit should be reinstated after dismissal for non-attendance

Holding

The application was dismissed because the explanation for non-attendance was unsupported and counsel had not complied with prior court orders

Reasoning

The court noted that counsel claimed to be in the High Court but produced no evidence of any matter listed there that day. Even so, the file was stood aside until 10:30 a.m., leaving time for counsel to attend. Counsel had also disobeyed a direction to file a substitution application within 31 days after the plaintiff's death was disclosed, so the suit had abated. The defendants did not oppose the application, but that did not cure these defects.

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Effect of the plaintiff's death on the suit

Holding

The suit abated because no substitution application was filed within the 31 days directed by the court

Reasoning

On 30th March, 2017 the court was informed that the plaintiff had passed on and directed counsel to file an application to substitute the plaintiff within 31 days. Counsel did not comply. Given that the plaintiff died on 10th September, 2015, the court found the suit had abated, which independently precluded reinstatement in the name of the deceased plaintiff.

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Legal principles established

A plaintiff's advocate who fails to appear at a hearing cannot have the dismissal set aside without evidence of a valid reason for non-attendance
Upon the death of a plaintiff and non-compliance with substitution directions, the suit abates

Court orders

1.The Application dated 24th May, 2017 is dismissed with no order as to costs
2.The suit stands dismissed

Jurisdiction invoked: Not expressly invoked; inherent/underlying civil procedure powers to reinstate a dismissed suit

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Amos Munyao Mukua v J. Mutua Munyao & 3 others [2018] KEELC 4379 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4379/eng@2018-03-02

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