Stephen Thathi Lolo & 177 others v Ziwani Mosque School Association & another [2019] KEELC 2297 (KLR)
The bottom line
#A Kenyan court ruled a suit cannot be declared dead after a party's death without proof of when that death occurred.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection satisfied the Mukisa Biscuits test
It did not, because it required the ascertainment of facts - namely when the 2nd Defendant died and whether one year had since lapsed.
The court accepted the Mukisa Biscuits and Oraro v Mbaja principles that a true preliminary objection must be a pure point of law argued on assumed facts. The objection that the suit had abated turned on the date of the 2nd Defendant's death, which no party proved. Since facts had to be investigated, the objection failed the threshold and had to be dismissed.
Whether Machakos CMCC 627/2006 abated under Order 24 Rule 4(3)
Abatement could not be declared on the material before this court; the question must be determined in the Machakos court where the suit is pending.
Order 24 Rule 4(3) provides that a suit abates against a deceased defendant if no application is made within one year. The court agreed abatement follows the mandatory one-year lapse, but no evidence established when the 2nd Respondent died. The Applicants also relied on a ruling in Succession Cause No.196 of 2017 holding the suit survived the death. Lacking proof of death, the court could not find the suit dead and allowed the transfer.
Legal principles established
#- A suit abates against a deceased defendant where no application for substitution or revival is made within one year, but abatement as a fact depends on proof of the date of death.
- Where the date of death is not proved, the enquiry into abatement must be made in the court seized of the suit, and a preliminary objection raising a factual question fails.
Court orders
#- 1.The preliminary objection dated 21st September, 2018 (filed 25th September, 2018) is dismissed
- 2.Prayers 1 and 2 of the Applicant's application are allowed - CMC ELC 627 of 2006 (Machakos CMCC 627/2006) to be transferred to this court and stay of further proceedings in that suit pending determination
- Jurisdiction invoked
- Not stated; the court entertained a Notice of Motion to transfer Machakos CMCC 627/2006 to itself
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Thathi Lolo & 177 others v Ziwani Mosque School Association & another [2019] KEELC 2297 (KLR)", Case Analysis (2019). Notice of Motion dated 08/08/2018 (own number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2297/eng@2019-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.