Loice Moraa Tongi v William Tongi Mogusu & another [2019] KEELC 1175 (KLR)
The bottom line
#If you sue someone in Kenya who dies during the case, you must replace them with their estate's representative within one year, or your case automatically dies.
What this practically means
#Executive summary
#Key legal issues
#Abatement of suit against deceased defendant
The suit against the 1st defendant abated on 13th August 2013, one year after his death, as no application for substitution by a legal representative was made
Order 24 Rule 1 requires the legal representative of a deceased defendant to be made a party on application; Rule 3 provides that where no application is made within one year the suit abates against the deceased defendant. The 1st defendant died on 13th August 2012 and was never substituted, so the suit abated a year later and ceased to exist.
Effect of abatement on the substratum of the plaintiff's suit and pending applications
Once the suit against the 1st defendant abated, the substratum of the plaintiff's suit disappeared and the pending applications could not be prosecuted
The plaintiff sought to block a sale by her husband who was the 1st defendant; the sale was incomplete at his death. The 2nd defendant cannot complete the sale without engaging the administrator of the estate, and the deceased estate's property cannot be dealt with otherwise than through a duly appointed administrator under Section 82 of the Law of Succession Act. Continuing the proceedings would be an exercise in futility.
Legal principles established
#- No suit against a deceased person can be made or prosecuted other than through a duly appointed personal legal representative
- A suit against a deceased sole defendant abates one year after death where no application for substitution is made; after abatement the suit ceases to exist and can only be revived under Order 24 Rule 7(2)
- Proceedings carried on after abatement in respect of property forming part of a deceased's estate are irregular and null and void
Court orders
#- 1.The preliminary objection taken by the plaintiff is sustained
- 2.The plaintiff's application dated 23rd February 2018 is struck out
- 3.The 2nd defendant's application dated 18th June 2018 is struck out
- 4.No order for costs
- Jurisdiction invoked
- Environment and Land Court Act (original jurisdiction over land disputes); Civil Procedure Rules Order 24 and Law of Succession Act Cap 160 considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Loice Moraa Tongi v William Tongi Mogusu & another [2019] KEELC 1175 (KLR)", Case Analysis (2019). Kitaru Settlement Scheme/19 suit (plaint dated 17th January 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1175/eng@2019-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.