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ELCAllowedNot stated in judgment (suit concerning land reference number Ndeiya/Ndeiya/718)· [2019] KEELC 412 (KLR)

Robert Mbugua Ndachi & another v Joseph Ndungu Njenga & 3 others [2019] KEELC 412 (KLR)

Environment and Land Court
12 November 2019
KBK. BOR
872 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court revived a land dispute that had automatically ended when a plaintiff died, accepting the family's explanation for the long delay.

What this practically means

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Executive summary

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The Plaintiffs filed suit by plaint dated 06/05/1992 seeking a declaration that they were the sole proprietors of land reference number Ndeiya/Ndeiya/718 and a permanent injunction restraining the Defendants from encroaching on, alienating or dealing with the property. The Defendants filed a defence and counterclaim dated 01/11/1993. The suit stalled after the 1st Plaintiff died. Lucy Wambui Mbugua, the 1st Plaintiff's legal representative, applied by application dated 26/08/2019 to revive the suit and be substituted in place of the deceased 1st Plaintiff. She explained that the 1st Plaintiff died on 13/10/2014; she obtained letters of administration intestate on 18/07/2017, confirmed on 17/12/2017, the delay being caused by lack of finances; and that thereafter the court file could not be traced, as evidenced by letters from her advocates seeking the court's assistance. The Defendants objected, arguing that the suit abated since the 1st Plaintiff was not substituted within one year of death, and that the 2nd Plaintiff was a stranger to the proceedings. The court framed the issue as whether the Applicant's reasons for delay amounted to sufficient cause. It held that the suit abated by operation of law on 13/10/2015, but found the Applicant's explanation of financial disability and the missing court file plausible and truthful. It was also persuaded that the Defendants' counterclaim should be heard and determined on merit. The application dated 26/08/2019 was allowed, with costs in the cause.

Key legal issues

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01

Whether the delay in applying to revive the abated suit was occasioned by sufficient cause

Holding

The court found the Applicant's explanation of financial disability and the missing court file plausible and truthful, amounting to sufficient cause

Reasoning

The Applicant delayed petitioning for letters of administration because she lacked finances, and only applied in 2016 when her financial position improved. After obtaining the grant, her advocates' letters showed genuine efforts to trace the missing court file. The court found this explanation plausible and truthful, and further noted that the Defendants' counterclaim should also be heard on merit, favouring revival in the interest of all parties.

p. 2
02

Whether the suit abated on the death of the 1st Plaintiff

Holding

The suit abated by operation of law one year after the 1st Plaintiff's death, since substitution was not effected within that period

Reasoning

The 1st Plaintiff died on 13/10/2014. Under Order 24 rule 4 of the Civil Procedure Rules, substitution ought to have been effected within one year. No substitution having occurred, the suit abated automatically on 13/10/2015, triggering the need to seek revival under Order 24 Rule 7(2).

p. 1

Legal principles established

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  • A suit abates where a sole or surviving plaintiff is not substituted within one year of death, under Order 24 rule 4 of the Civil Procedure Rules
  • The court has discretion under Order 24 Rule 7(2) to revive an abated suit where the applicant was prevented by sufficient cause from continuing the suit

Court orders

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  1. 1.The application dated 26/08/2019 is allowed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 4
  • Civil Procedure RulesOrder 24 Rule 7(2)

Cases cited (1)

  • Kamau Kania Patrick Rerimoi & 2 Others
    [2017] eKLR
Jurisdiction invoked
Inherent discretion under Order 24 Rule 7(2) of the Civil Procedure Rules

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, "Robert Mbugua Ndachi & another v Joseph Ndungu Njenga & 3 others [2019] KEELC 412 (KLR)", Case Analysis (2019). Not stated in judgment (suit concerning land reference number Ndeiya/Ndeiya/718). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/412/eng@2019-11-12

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