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ELCDismissedOriginating Summons dated 5/11/2002 (Notice of Motion dated 13/3/2017)· [2018] KEELC 4533 (KLR)

Kamuoho Ngethe v Samson Mwangi Ngeru & 2 others [2018] KEELC 4533 (KLR)

Environment and Land Court
16 February 2018
BEB M Eboso
1,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to revive a land case filed in 2002, ruling that an eight-year unexplained delay and wrong estate administration left the applicant without standing.

What this practically means

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Executive summary

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The original plaintiff, Kamuoho Ngethe, filed an Originating Summons on 5/11/2002 seeking declarations of prescriptive rights, a trust, fraud in the transfer of Land Parcel Number Ndumberi/Ndumberi/T765, sub-division, registration of a title and injunctive relief. He died on 26/8/2005 and was substituted by Mary Wanjiku Kamuoho in 2006; she died on 20/12/2008, and the suit abated in December 2009. In a Notice of Motion dated 13/3/2017, Jane Njambi Kamuoho, administrator of the estate of Mary Wanjiku Kamuoho, sought substitution and revival of the suit, attributing the delay to financial constraints and, from the bar, the death of a previous advocate. The 1st and 2nd defendants opposed, contending the delay was inordinate, inexcusable and unexplained. The court held that an applicant for substitution or revival must show good reason under Order 24 rule 3; the eight-year delay was unexplained and the explanations unsubstantiated, the supporting affidavit never mentioning a deceased advocate and no evidence of financial hardship being tendered. The court further held that the applicant lacked locus standi because her grant related to the estate of Mary Wanjiku Kamuoho, not that of the original plaintiff; she would first need to be appointed administrator of the Estate of Kamuoho Ngethe in Kiambu Succession Cause No. 6 of 2006. The application was dismissed with costs to the 1st and 2nd defendants.

Key legal issues

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01

Whether the inordinate delay in seeking revival/substitution was sufficiently explained

Holding

The delay of over 8 years was inordinate and the explanations of a deceased advocate and financial constraints were unsubstantiated and lacked candour

Reasoning

The application was filed over 8 years after the second plaintiff's death. The deceased-advocate allegation was made only from the bar, without naming the advocate, and was absent from the supporting affidavit. No evidence of financial constraints was tendered. The court's discretion must be exercised judiciously, and good reason under Order 24 rule 3 was not shown.

p. 3
02

Whether the applicant had locus standi to bring the application

Holding

The applicant, as administrator of the estate of Mary Wanjiku Kamuoho, lacked locus standi; she needed first to be appointed administrator of the estate of the original plaintiff, Kamuoho Ngethe

Reasoning

Mary Wanjiku Kamuoho's involvement in the suit was as administrator of the estate of Kamuoho Ngethe, not in her own capacity. Her grant does not confer standing on her own administrator. The applicant would have to take out substitution in Kiambu Succession Cause No. 6 of 2006 (Estate of Kamuoho Ngethe) before she could come into the suit.

p. 3

Legal principles established

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  • An applicant seeking substitution or revival of an abated suit must tender a good reason for the delay before the order is granted
  • An administrator of a substituted litigant's estate has no locus standi in the suit; substitution proceedings must be taken out in the estate of the original plaintiff

Court orders

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  1. 1.The Notice of Motion dated 13/3/2017 seeking substitution and revival orders is dismissed
  2. 2.The 1st and 2nd defendants shall have costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rules 3, 3(2), 7, 7(2)
  • Constitution of KenyaArticle 159(2)(d)
  • Law of Succession Act

Cases cited (2)

  • Rosemary Wanjiru Kungu Vs Elijah Macharia Githinji & Another
    (2014) eKLR
  • Said Sweilem Gheithan Saanum V Commissioner of Lands (being sued through Attorney General) & 5 others
    (2015) eKLR
Jurisdiction invoked
Order 24 of the Civil Procedure Rules (substitution and revival of abated suits)

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, "Kamuoho Ngethe v Samson Mwangi Ngeru & 2 others [2018] KEELC 4533 (KLR)", Case Analysis (2018). Originating Summons dated 5/11/2002 (Notice of Motion dated 13/3/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4533/eng@2018-02-16

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