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ELCDismissedNot stated in extract (ELC suit, Meru)· [2019] KEELC 888 (KLR)

Japhet Mbae Rutere,Mary M. Mutwii,Jakubu M’arimi M’rutere ,James Gatobu M’ikiugu,Monica Mwariumwe Kithinji,Gilbert Mbaabu,Joshua Kaburu Kimathi,Moses Gituma Harun,Patrick Kinyua M’iringo,Michael Mugambi J. Kabugo,Douglas Mutuma Magana & Feliciana Muthoni Rutere v Reynolds Construction Company (Environment & Land Case 28 of 2013) [2019] KEELC 888 (KLR)

Environment and Land Court
12 November 2019
2,306 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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If a Kenyan lawsuit lapses after a party dies, you must first ask the court to revive it before you can join a replacement.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (Lucy N. Mbugua, ELC Judge) determined an application dated 30.1.2019 by Mary Naito Kinyua, the wife of the deceased 9th plaintiff Patrick Kinyua M’Iringo (who died on 1.10.2016), seeking substitution under Order 24 rule 3 of the Civil Procedure Rules 2010. The applicant argued that Justice Cherono's order of 28.11.2018 and the court's order of 30.1.2019 had extended time to file the substitution application, and relied on Mbaya Nzulwa v Kenya Power and Mwenda Munjuri to urge that technicalities should not defeat a hearing on the merits. The respondent opposed, contending the suit had abated one year after death and that the court had no jurisdiction to substitute a party into an abated suit, relying on Kenya Farmers' Cooperative Union v Charles Murgor and the Lilian S jurisdiction principle. The court found that the 9th plaintiff died on 1.10.2016, so the suit abated by 1.10.2017, and that the earlier orders merely permitted filing of the application and did not revive the suit. The court also found the applicant guilty of material non-disclosure for failing to reveal the death during pre-trial directions and when the matter was listed for trial. Following Muriithi Ngweya, the court held that revival under Order 24 rule 7(2) must precede substitution, and that an order for substitution without revival would be a nullity. The application was dismissed with no order as to costs, each party bearing their own costs.

Key legal issues

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01

Whether substitution is possible after abatement of a suit

Holding

No; the proper procedure is to first seek revival of the abated suit under Order 24 rule 7(2) in the same application

Reasoning

Order 24 rule 3(2) provides that where no application is made within one year of the death of a plaintiff, the suit abates so far as the deceased plaintiff is concerned. The 9th plaintiff died on 1.10.2016, so the suit abated by 1.10.2017. The court relied on Kenya Farmers' Cooperative Union Ltd v Charles Murgor and Mbaya Nzulwa v Kenya Power to hold that an abated suit ceases to exist and must be revived before substitution can be ordered.

p. 4
02

Whether the consent orders of 28.11.2018 and 30.1.2019 revived or extended time in the abated suit

Holding

No; those orders merely gave the applicant an opportunity to file the substitution application and did not amount to revival

Reasoning

The court held that the orders allowing the applicant to file the application for substitution were not a licence to have the application allowed contrary to the laid-down procedure. The suit had already abated before those orders were made, and the orders could not be construed as a revival of the suit.

p. 3
03

Whether the applicant's non-disclosure of the death of the 9th plaintiff affected the proceedings

Holding

The applicant and her advocate were guilty of material non-disclosure by failing to disclose the death when pre-trial directions were given and when the matter was scheduled for trial

Reasoning

The applicant failed to disclose the death of the 9th plaintiff on 25.9.2018 during pre-trial and again on 28.11.2018 and 30.1.2019. Relying on Priscilla Ndubi v Gerishon Gatobu Mbui, the court emphasized that parties must make full disclosure of all material facts, as non-disclosure undermines justice.

p. 3

Legal principles established

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  • Once a suit abates under Order 24 rule 3(2), it ceases to exist and the court has no jurisdiction to order substitution except upon revival under Order 24 rule 7(2)

Court orders

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  1. 1.The application dated 30.1.2019 for substitution is dismissed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 24 rule 3
  • Civil Procedure Rules 2010Order 24 rule 3(2) and proviso
  • Civil Procedure Rules 2010Order 24 rule 4(3)
  • Civil Procedure Rules 2010Order 24 rule 7(2)
  • Constitution of KenyaArticle 159(d)

Cases cited (7)

  • Mbaya Nzulwa vs Kenya Power and Lighting Co. Ltd
    (2018) eKLR
  • Mwenda Munjuri vs Trustees of the Agricultural Society of Kenya
    (2017) eKLR
  • Said Sweilem Gheithan Saanum vs. Commisioner of Lands & 5 Others
    (2015) eKLR
  • Kenya Farmers’ Cooperative Union Limited versus Charles Murgor (Deceased) t/a Kaptabei Coffee Estate
    (2005) eKLR
  • Owners of Motor Vessel “Lilian S” versus Caltex Oil (Kenya) Ltd
    (1959) eKLR
  • Priscilla Ndubi and another vs Gerishon Gatobu Mbui
    Succession Cause No. 720 of 2013 Meru
  • Muriithi Ngweya vs Gikonyo Macharia Mwangi & 3 others
    ELC No. 221 Murang’a
Jurisdiction invoked
Order 24 rule 3 of the Civil Procedure Rules 2010

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, "Japhet Mbae Rutere,Mary M. Mutwii,Jakubu M’arimi M’rutere ,James Gatobu M’ikiugu,Monica Mwariumwe Kithinji,Gilbert Mbaabu,Joshua Kaburu Kimathi,Moses Gituma Harun,Patrick Kinyua M’iringo,Michael Mugambi J. Kabugo,Douglas Mutuma Magana & Feliciana Muthoni Rutere v Reynolds Construction Company (Environment & Land Case 28 of 2013) [2019] KEELC 888 (KLR)", Case Analysis (2019). Not stated in extract (ELC suit, Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/888/eng@2019-11-12

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