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ELCDismissedELC Civil Appeal No. 88 of 2015· [2019] KEELC 2000 (KLR)

Charles Ngare Gathanga v Obadiah Kariuki Kamau [2019] KEELC 2000 (KLR)

Environment and Land Court
22 July 2019
KBK. Bor
667 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If a party to a Kenyan land case dies, their legal representative must apply to substitute them within one year, or the case dies with them.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nairobi against the decision of Hon. J. Kituku, Principal Magistrate, Kiambu, dated 21/10/2015 in Kiambu CMCC No. 91 of 2015. The Magistrate had found that the Respondent had a proprietary right in land reference Kiambaa/Kihara/2363, held by the Respondent and Rebecca Wambui as trustees for Francis Kamau Gitonga, that the Appellant was a trespasser, and ordered eviction. The Appellant, who claimed to be a lessee under a lease dated 1/5/2011 for 5 ½ years at a monthly rent of Kshs. 2000/=, appealed on the grounds that the Magistrate erred on the proprietary right, on the eviction order, and in signing a flawed order. The Respondent argued that the lease expired in 2016 and that the appeal had collapsed because the Appellant died on 23/08/2016 and was never substituted. The court found that an application for substitution filed by Mary Wanjuhi Kiogera was never determined, leave to substitute was never granted, and no substitution had been made more than two years after the death. Applying Order 24 Rule 3 of the Civil Procedure Rules, the court held that substitution must occur within one year where the cause of action survives; the cause of action abated on 23/08/2017, and the expired lease showed no surviving cause of action. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the appeal abated upon the death of the Appellant

Holding

The appeal had collapsed because the Appellant died on 23/08/2016 and no substitution was made within one year; the cause of action abated on 23/08/2017

Reasoning

The record showed that Mary Wanjuhi Kiogera's application to substitute the Appellant was abandoned in part and never determined; leave to substitute was never granted. More than two years passed after the Appellant's death without substitution. Order 24 Rule 3 requires substitution within one year where the cause of action survives, and it had not been shown that the cause of action survived the Appellant's death.

p. 2
02

Whether the cause of action survived the Appellant's death

Holding

It did not; the lease which was the subject matter of the suit had expired and was not extended

Reasoning

The subject matter was a lease entered into on 1/5/2011 for a term of 5 ½ years at a monthly rent of Kshs. 2000/=. The lease expired around November 2016 and was not extended. Since nothing survived the Appellant's death, the appeal could not continue even if substitution had been sought.

p. 2

Legal principles established

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  • Under Order 24 Rule 3 of the Civil Procedure Rules, substitution of a dead plaintiff must be made within one year of death by the legal representative where the cause of action survives; otherwise the cause abates
  • An appeal collapses where the appellant dies and is not substituted, the cause of action having abated

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party will bear its costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 3
On appeal from
Principal Magistrate's Court, Kiambu
Kiambu CMCC No. 91 of 2015
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts in land matters

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, "Charles Ngare Gathanga v Obadiah Kariuki Kamau [2019] KEELC 2000 (KLR)", Case Analysis (2019). ELC Civil Appeal No. 88 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2000/eng@2019-07-22

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