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ELCPartially AllowedNot stated in judgment· [2019] KEELC 3898 (KLR)

Sarah Gathoni Muiruri & another v Wanjiku Kiguru [2019] KEELC 3898 (KLR)

High Court of Kenya
28 March 2019
LKL. Komingoi
1,256 words in judgment
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The bottom line

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A Kenyan High Court confirmed that if a defendant dies and no substitution is made within one year, the lawsuit automatically dies with them.

What this practically means

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Executive summary

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The defendant died on 12th April 2015 and no application for her substitution with a legal representative was made within one year. Her advocate, Wambui Ndegwa, brought a notice of motion dated 13th September 2017 under Order 24 Rule 4(3) of the Civil Procedure Rules seeking a declaration that the suit had abated against the defendant. The plaintiffs filed a preliminary objection contending that the advocate's supporting affidavit was defective, that the death of a client terminates an advocate's authority to act, and that without authority from the deceased's personal representative the advocate was a stranger to the suit. The court directed that the objection and the motion be heard together with written submissions. Dismissing the preliminary objection, the judge held that Order 19 Rule 3 permits statements of information and belief showing sources, and that the annexed burial permit was the source of the advocate's information; the plaintiffs' own advocate had admitted that counsel informed the court of the client's demise. On the motion, the court held that Order 24 Rule 4(3) is set in mandatory terms: substitution should have occurred by 12th April 2016 but was not done. Relying on the cited authorities, the court found that a suit abates by operation of law where no substitution is made within one year of a defendant's death, and that an abated suit ceases to exist in the eye of the law. The preliminary objection was dismissed and the application allowed, with the suit declared to have abated as against the defendant.

Key legal issues

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01

Validity of the supporting affidavit sworn by an advocate for a deceased client

Holding

The preliminary objection to the affidavit failed; the burial permit annexed was the source of the advocate's information and the death was not in doubt.

Reasoning

Order 19 Rule 3 confines affidavits to facts within the deponent's own knowledge, but permits statements of information and belief showing sources. The advocate deposed to the defendant's death and annexed the burial permit, which was the source of her information. The plaintiffs' own advocate admitted counsel had informed the court of the client's demise. The objection was therefore without merit and dismissed.

p. 2
02

Whether the suit abated against the deceased defendant

Holding

The suit abated because no substitution application was made within one year of the defendant's death on 12th April 2015.

Reasoning

Order 24 Rule 4(3) is set in mandatory terms: where no application under sub-rule (1) is made within one year, the suit abates against the deceased defendant. The defendant died on 12th April 2015, so substitution ought to have occurred by 12th April 2016. This was not done, and the death and its date were undisputed. The suit therefore abated as against the defendant.

p. 2

Legal principles established

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  • Where no application for substitution of a deceased defendant is made within one year, the suit abates by operation of law.
  • The effect of an abated suit is that it ceases to exist in the eye of the law and no fresh suit can be brought on the same cause of action.

Court orders

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  1. 1.The preliminary objection dated 19th September 2017 is dismissed.
  2. 2.The Notice of Motion dated 13th September 2017 is allowed.
  3. 3.The suit has abated as against the defendant.

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 4(3)
  • Civil Procedure RulesOrder 24 Rule 1
  • Civil Procedure RulesOrder 24 Rule 4(1)
  • Civil Procedure RulesOrder 19 Rule 3

Cases cited (4)

  • Kenya Farmers Cooperative Union Ltd vs Charles Murgor (deceased) t/a Kaptabei Coffee Estate
    [2003] eKLR
  • Wallace Kinuthia vs Anthony Nd'ung'u Muongi & 3 Others
    [2013] eKLR
  • Said Sweilem Gheithan Saanum vs Commissioner of Lands (being sued through Attorney General) & 5 Others
    [2015] eKLR
  • Regina Waithira Mwangi Gitau vs Boniface Nthenge
    [2015] eKLR
Jurisdiction invoked
Order 24 Rule 4(3) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sarah Gathoni Muiruri & another v Wanjiku Kiguru [2019] KEELC 3898 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3898/eng@2019-03-28

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