Raphael Murigi Kariuki v John Mwangi Ndirangu (Intended legal representative of Joseph Ndirangu Mwangi (Deceased) & 3 others [2019] KEELC 2207 (KLR)
The bottom line
#In Kenya, if a party to a court case dies, you must apply to substitute them within one year—or the case against them dies with them.
What this practically means
#Executive summary
#Key legal issues
#Substitution of the legal representative of the 1st Defendant
Allowed, as substitution was done within 12 months of the 1st Defendant's death on 27/8/18
The court found the 1st Defendant died on 27/8/18 and the substitution application was brought within the 12-month window, so the suit had not abated against him. The applicant held a limited grant ad litem issued on 7/2/19 and qualified as a legal representative under Section 2 of the Civil Procedure Act and Section 3 of the Law of Succession Act.
Substitution of the legal representative of the 4th Defendant
Dismissed, the suit having abated against the 4th Defendant
The 4th Defendant died on 5/1/18, so the suit abated on 5/1/19 under Order 24 Rule 3(2). No application for extension of time or revival was made, and following Kenya Farmers Coop Union Ltd v Charles Murgor, substitution before revival would be a nullity. The abatement also defeated the pending Notice of Motion dated 2/11/2015 in so far as it concerned the 4th Defendant.
Whether the motion, brought under Probate and Administration Rules instead of the Civil Procedure Rules, was fatally defective
Not fatal; the court proceeded under Order 24 of the Civil Procedure Rules invoking Article 159
The court agreed the applicants cited the wrong provisions but noted the respondent understood and responded to the application as one for substitution under the Civil Procedure Rules. The court also counselled advocates on their duty to draft precise pleadings. The error did not defeat the application.
Whether there was any subsisting cause of action warranting substitution
Yes; the 2009 judgment remained in force for enforcement and a Notice of Motion dated 2/11/15 was pending
The respondent argued that the suit was determined by a 2009 judgment and decree, leaving no cause of action. The court disagreed, holding that the judgment remained enforceable and a pending motion existed, so substitution of the 1st Defendant was necessary to prosecute the outstanding application.
Legal principles established
#- Under Order 24 Rule 3(2), where no application is made within one year of a defendant's death, the suit abates against the deceased defendant; substitution before revival of an abated suit is a nullity
- A court may treat an application brought under the wrong procedural provisions as properly brought under the correct rules where the parties have understood and responded to it on that basis
Court orders
#- 1.John Mwangi Ndirangu be and is hereby substituted in place of Joseph Ndirangu Mwangi, deceased as the 1st Defendant
- 2.The application in respect to the 4th Defendant is dismissed
- 3.Costs in the cause
- Jurisdiction invoked
- Probate and Administration Rules Rules 49, 40(1) and 73; Civil Procedure Rules Order 24; Article 159 of the Constitution (oxygen principle invoked to treat the motion as brought under the correct rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raphael Murigi Kariuki v John Mwangi Ndirangu (Intended legal representative of Joseph Ndirangu Mwangi (Deceased) & 3 others [2019] KEELC 2207 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2207/eng@2019-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.