Mary Waithera v Mary Nyokabi Ngugi & another [2019] KEELC 1085 (KLR)
The bottom line
#A Kenyan court revived an adverse possession claim after the plaintiff's death, but refused to stop the registered owner from demanding vacant possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the abated suit should be reinstated and the applicant substituted
The suit was reinstated as against the 1st respondent only, with the applicant substituted as plaintiff
The court noted that the deceased died on 11th September 2017, his advocates failed to attend court and to advise on the estate's interest, and a notice to show cause went unheeded leading to the abatement order of 1st October 2018. Given the nature of the dispute, the court was persuaded that reinstatement and substitution would allow the suit to be heard on merit, but condemned the applicant to thrown away costs due to the advocates' conduct.
Whether a temporary injunction should issue
The prayer for injunction was dismissed
The court held that the 1st respondent is the registered owner of the suit property and that following abatement there was no suit pending; his demand that the applicant vacate was therefore not wrongful and could not establish a prima facie case. Irreparable harm was not demonstrated because the respondent threatened legal proceedings, not extra-judicial eviction. The applicant had also not yet been substituted as plaintiff.
Service of the application on the 2nd respondent
Service on the 2nd respondent was ineffective as he died in 2015 and was never substituted
The court observed that the process server purportedly served the 2nd respondent at offices at Hazina Towers, yet the 2nd respondent had died in 2015 and not been substituted, making such service impossible. The 1st respondent did not respond and the application was unopposed at the hearing before the court.
Legal principles established
#- Where a suit abates following the death of a plaintiff, the court may reinstate the suit and substitute the deceased's legal representative so the suit can be heard on merit.
- A demand to vacate made by a registered owner after abatement of an adverse possession suit is not wrongful and cannot found an injunction; the applicant must establish a prima facie case and irreparable harm.
Court orders
#- 1.The orders issued on 1st October 2018 are set aside as concerns the 1st respondent and the suit is reinstated for hearing on merit as against the 1st respondent only
- 2.The applicant is substituted as plaintiff in place of the deceased, John Kinyanjui Ng'aaru, and the Originating Summons shall be amended accordingly
- 3.The prayer for injunction is dismissed
- 4.The applicant shall pay to the 1st respondent forthwith thrown away costs assessed at Kshs.7,000/=
- Jurisdiction invoked
- Inherent powers of the court to reinstate a suit and grant substitution following abatement of a suit upon the death of a plaintiff (civil procedure)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Waithera v Mary Nyokabi Ngugi & another [2019] KEELC 1085 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1085/eng@2019-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.