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ELCDismissedNot stated in the excerpt (Nairobi ELC suit; application dated 26th November, 2018)· [2019] KEELC 1518 (KLR)

John Maina Mburu v Evans Kageche Boro [2019] KEELC 1518 (KLR)

Environment and Land Court
26 August 2019
EOE.O Obaga
429 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled you cannot consolidate a lawsuit that has already 'died' because its plaintiff passed away and no one replaced them.

What this practically means

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Executive summary

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The 2nd Defendant/Applicant filed a Notice of Motion dated 26th November 2018 seeking consolidation of the Nairobi suit with Nakuru ELC Case No. 213 of 2013 (Alexander Kaburu Mungai v Evans Kageche Boro), contending that both suits concern LR No. 398/18 and that consolidation would avoid conflicting decisions; he had filed a defence and counter-claim in the Nakuru suit. The Plaintiff/Respondent opposed via grounds of opposition dated 31st January 2019, arguing that the plaintiff in the Nakuru suit died on 21st April 2013 with no substitution, so that suit abated a year after the death; that there was therefore no suit to consolidate; that he, as registered owner, had an independent cause of action; and that the application was designed to delay the suit. The court framed a single issue: whether the two suits should be consolidated. It noted that the Applicant did not deny the plaintiff's death or the absence of substitution, that the Nakuru suit abated one year after the death, and that no application to revive it existed. Holding that a court cannot consolidate an abated suit, the court found no merit in the application, dismissed it, and awarded costs to the Respondent. Judgment was delivered at Nairobi on 26th August 2019 by E.O Obaga, Judge.

Key legal issues

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01

Whether this suit should be consolidated with Nakuru ELC Case No. 213 of 2013

Holding

The application for consolidation was dismissed because the Nakuru suit had abated following the death of its plaintiff and no substitution or revival application had been made.

Reasoning

The subject matter in both suits is LR No. 398/18, and the applicant sought consolidation to avoid conflicting decisions. However, the plaintiff in the Nakuru suit died on 21st April 2013 and no substitution was carried out, so the suit abated one year later. There was no evidence of any application to revive it, and the applicant did not deny these facts. An abated suit cannot be consolidated.

p. 2

Legal principles established

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  • A suit in which the plaintiff has died without substitution abates one year after the death, and cannot be consolidated with another suit while abated.

Court orders

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  1. 1.The Applicant's Notice of Motion dated 26th November, 2018 seeking consolidation is dismissed with costs to the Respondent
Jurisdiction invoked
Inherent powers of the Environment and Land Court to order consolidation of suits (not expressly stated in the judgment)

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, "John Maina Mburu v Evans Kageche Boro [2019] KEELC 1518 (KLR)", Case Analysis (2019). Not stated in the excerpt (Nairobi ELC suit; application dated 26th November, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1518/eng@2019-08-26

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