Joseph Ochere Saso v Michael Odotte & another [2019] KEELC 3686 (KLR)
The bottom line
#The court refused to reinstate a land suit dormant for nearly two years, because the plaintiff blamed the wrong court order and never revived his claim after a defendant died.
What this practically means
#Executive summary
#Key legal issues
#Reasonable explanation for delay in prosecution
No reasonable explanation was given; the last step was over a year and nine months before the dismissal, and the reasons advanced (lost file, new reference number, death of 2nd Defendant) were unsupported by evidence or raised only belatedly
The court traced the record: the last action towards prosecution was fixing the matter for hearing on 11th June 2015 for 25th November 2015. The alleged new reference number was never complained of at the dismissal hearing, no evidence showed the file went missing, and the death of the 2nd Defendant was never cited as a cause of delay on 29th March 2017 until the present application. Diligence by parties and counsel is demanded by the overriding objective.
Defectiveness of the review application
The application was defective as it sought review of an order of 18th April 2017 which does not exist, since the dismissal was made on 29th March 2017, and the order sought to be reviewed was not annexed
The court found from its record that the suit was dismissed on 29th March 2017 after hearing counsel on the notice to show cause. Because the motion and supporting affidavits targeted a non-existent order of 18th April 2017, the relief could not issue. Failure to annex the order, as required under Section 80 of the Civil Procedure Act, would have alerted counsel to the error.
Abatement of suit against deceased defendant
The suit against the 2nd Defendant abated one year after his death in 2015, and the counterclaim likewise abated, since no application to substitute or revive was made
The 2nd Defendant died in 2015 and no substitution was made within one year, so under Order 24 Rule 4(3) the suit against him abated. The plaintiff made no application under Order 24 Rule 7(2) to revive the abated suit, and cannot shift that burden to the deceased's counsel or family. The 2nd Defendant's counterclaim abated for the same reason.
Right to fair hearing versus expeditious disposal
Article 50(1) and Article 159(2)(d) do not assist a plaintiff whose counsel failed to diligently prosecute; Article 159(2)(b) demands that justice shall not be delayed
The court acknowledged the right to be heard and the duty to disregard procedural technicalities, but noted all parties were represented throughout. Sections 1A and 1B of the Civil Procedure Act require parties and advocates to assist the court in achieving expeditious, proportionate and affordable resolution. The plaintiff and his counsel were not diligent, delaying justice to both sides.
Legal principles established
#- A review application directed at an order that does not exist is defective and an abuse of the court process
- A suit against a deceased defendant abates at the expiry of one year from the date of death under Order 24 Rule 4(3) if no substitution is made
- A plaintiff cannot sit back and wait for a deceased defendant's counsel or family to take substitution steps; the plaintiff must move under Order 24 Rule 7(2) to revive the abated suit
- Right to be heard under Article 50(1) and the dictates of Article 159(2)(d) do not excuse parties who, through counsel, fail to diligently prosecute their suits
Court orders
#- 1.The Plaintiff's motion dated the 13th June 2017 is dismissed with costs
- Jurisdiction invoked
- Inherent jurisdiction under the Civil Procedure Act and Civil Procedure Rules (Order 12 Rule 7, Order 17 Rule 2, Order 45, Order 24) read with Articles 50(1) and 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Ochere Saso v Michael Odotte & another [2019] KEELC 3686 (KLR)", Case Analysis (2019). ELC No. 364 of 2015 (formerly H.C.C No. 10 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3686/eng@2019-04-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.