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ELCPartially Allowednot stated in the judgment (ELC suit, Environment and Land Court, Nakuru)· [2019] KEELC 2686 (KLR)

Johnstone Muchemi Mugutu v Simon Kihara Kamau & 2 others; Kenton Kijabe Co-operative Society Ltd(Interested Party) [2019] KEELC 2686 (KLR)

Environment and Land Court

12 June 2019

MSMUNYAO SILA

1,193 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan court revived a land suit filed too late after the plaintiff's death, showing courts can excuse delay if the estate deserves its day in court.

What this practically means

Executive summary

This was a ruling on a notice of motion dated 22 November 2018 by Christine Mumbi Muchemi, daughter of the deceased sole plaintiff, seeking to be substituted as plaintiff in a land suit over parcel Longonot/Kijabe Block 3/1513 (Kenton) and enlargement of time to do so. The plaintiff had sued three defendants for allegedly invading the land and excavating sand, and Kenton Kijabe Cooperative Society Limited had been joined as interested party claiming ownership. The plaintiff died on 14 February 2017; the court was informed of the death in May 2017 and, more than one year later, marked the suit abated in February 2018 with liberty to the defendants to seek costs. The applicant, holding a grant of letters of administration, sought substitution nearly two years after the death, explaining the delay as financial hardship. The interested party opposed, arguing the suit had abated, the delay was unexplained, and the supporting affidavit was defective. The court held that under Order 24 Rule 3 the suit abated on the lapse of one year, and that the technically correct application was for revival under Rule 7(2), which was not expressly sought; it was also unpersuaded by the financial-constraints explanation. However, exercising its own discretion so that the estate could ventilate its case, the court enlarged time for substitution, revived the abated suit, and directed amendment of the plaint. It awarded the respondents costs of Kshs. 10,000/= payable within 14 days, failing which the revival would lapse.

Key legal issues

Effect of failure to apply for substitution within one year of a sole plaintiff's death

Holding

The suit abates under Order 24 Rule 3(2), and the proper remedy is an application for revival under Rule 7(2); the court retains discretion to revive on sufficient cause being shown.

Reasoning

Order 24 Rule 3 requires substitution within one year of a sole plaintiff's death, failing which the suit abates and costs may be awarded to the defendant. The court noted the suit had already abated by the time of the application and that revival was not expressly sought, but invoked its discretion to enlarge time and revive so the estate could ventilate its case.

p. 2

Whether financial constraints constituted good reason for the delay

Holding

The court was not persuaded by the excuse, as the applicant gave no particulars of her earnings or inability to pay the filing fee, but exercised its own discretion to allow the application anyway.

Reasoning

The applicant attributed the delay to financial constraints but did not state her occupation, earnings, or how she could not afford the Kshs. 475/= filing fee. The court nonetheless allowed the substitution in its discretion so the estate could be heard, while compensating the respondents with costs.

p. 2

Legal principles established

Where a sole plaintiff dies and the cause of action survives, substitution must be sought within one year or the suit abates, but the court may, for good reason, extend time.
Once a suit has abated, the correct application is one for revival under Rule 7(2) of Order 24, on proof of sufficient cause.

Court orders

1.Time for substitution of the deceased plaintiff enlarged
2.The abated suit revived
3.An amendment to the plaint directed to give effect to the substitution
4.Costs of Kshs. 10,000/= awarded to the respondents, payable within 14 days, failing which the order of revival lapses

Authorities

Legislation

Civil Procedure RulesOrder 24 Rule 3
Civil Procedure RulesOrder 24 Rule 7

Jurisdiction invoked: Order 24 Rules 3 and 7 of the Civil Procedure Rules (discretion to enlarge time and revive an abated suit)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Johnstone Muchemi Mugutu v Simon Kihara Kamau & 2 others; Kenton Kijabe Co-operative Society Ltd(Interested Party) [2019] KEELC 2686 (KLR)", Case Analysis (2019). not stated in the judgment (ELC suit, Environment and Land Court, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2686/eng@2019-06-12

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