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ELCOtherNot stated in judgment· [2019] KEELC 820 (KLR)

Silvana Karimi Chabari & 3 others v John Muthuri (Administrator of the Estate of M’Ananua M’Itere) [2019] KEELC 820 (KLR)

Environment and Land Court
13 November 2019
LMLucy N. Mbugua
621 words in judgment
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The bottom line

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A Kenyan land court refused to immediately close a case against a deceased defendant, giving plaintiffs two months to start succession proceedings instead.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (Mbugua J) dealt with an oral application made on 30 September 2019 by counsel for the defendant seeking to have the suit marked as abated following the defendant's death. Defence counsel argued that although the plaintiffs had sought leave in March 2019 to file an application to revive the suit, they had never filed a petition for the grant. Counsel for the plaintiffs asked for a final chance, as the plaintiffs were very old, seeking fifteen days. The court traced the history: the death was first raised on 11 February 2019, when the court declined to mark the suit abated and invited a formal application, which was never filed. The court then posed the question of when defence counsel learned of the death, noting that the death certificate produced on 30 September 2019 showed the defendant died on 18 January 2016, over three years earlier, and that nothing was said at pre-trial on 26 July 2018. Applying the duty of full disclosure from Priscilla Ndubi & another v Gerishon Gatobu (Gikonyo J), the court observed the death had been kept under wraps for three years and that substituting a deceased rival party is onerous because families may be economical with crucial information. Invoking Article 159(2) of the Constitution, the court declined to abate the suit immediately. Instead it gave the plaintiffs two months to demonstrate they had filed proceedings for a grant in the deceased's estate, failing which the suit shall stand as abated. No costs order was made.

Key legal issues

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01

Abatement of suit upon death of a defendant and the duty of disclosure

Holding

The court declined to mark the suit abated immediately, granting the plaintiffs two months to show that they had filed proceedings to obtain a grant in the deceased's estate; failing that, the suit shall stand abated.

Reasoning

The court noted that the defendant died on 18.1.2016 but the death was first raised on 11.2.2019, and no formal application followed. The court held defence counsel was under an obligation to assist the court to reach a just determination, observing the death had been kept 'under wraps' by the family. Relying on Priscilla Ndubi and Article 159(2), the court balanced procedural requirements against substantive justice.

p. 1

Legal principles established

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  • Parties to judicial proceedings must make full disclosure of all material facts, including the death of a party, in utmost good faith

Court orders

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  1. 1.The plaintiffs/applicants are given two months to demonstrate that they have filed proceedings in the relevant court to obtain the grant in respect of the estate of the defendant
  2. 2.In the event that no such proceedings have been filed, the suit shall stand as abated

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)

Cases cited (1)

  • Priscilla Ndubi & another vs Gerishon Gatobu
    Meru H.C.C Succession Cause No. 720 of 2013
Jurisdiction invoked
Article 159(2) of the Constitution

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, "Silvana Karimi Chabari & 3 others v John Muthuri (Administrator of the Estate of M’Ananua M’Itere) [2019] KEELC 820 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/820/eng@2019-11-13

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