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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether substitution is possible after abatement of a suit
No; the proper procedure is to first seek revival of the abated suit under Order 24 rule 7(2) in the same application
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.
Whether the consent orders of 28.11.2018 and 30.1.2019 revived or extended time in the abated suit
No; those orders merely gave the applicant an opportunity to file the substitution application and did not amount to revival
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.
Whether the applicant's non-disclosure of the death of the 9th plaintiff affected the proceedings
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
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.
Legal principles established
#- 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
#- 1.The application dated 30.1.2019 for substitution is dismissed
- 2.Each party to bear their own costs of the application
- Jurisdiction invoked
- Order 24 rule 3 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.