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ELCStruck OutNot stated in the judgment text· [2019] KEELC 3977 (KLR)

Kuria Mwangi v Samuel Kirumba Kariuki [2019] KEELC 3977 (KLR)

Environment and Land Court of Kenya
28 March 2019
2,128 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a fresh land suit because the plaintiff should have revived the earlier abated case instead of filing a new one.

What this practically means

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Executive summary

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The 1st to 6th Defendants, administrators of the estate of James Kariuki Manuthu alias Kariuki Kimani, together with the 7th Defendant, raised a preliminary objection dated 4/2/18 seeking the striking out of the Plaintiff's suit. They argued that the Plaintiff had previously sued the deceased original defendant over the same land parcel and the same reliefs in Murang'a CMCC No. 342 of 2014; that upon the defendant's death on 23/11/14 and the absence of any substitution application within one year, that suit abated on 23/11/15; and that Order 24 rule 7 of the Civil Procedure Rules mandatorily bars a fresh suit on the same cause of action once a suit abates. The 7th Defendant additionally argued the plaint breached Order 4 rule 1(1)(f) for lacking an averment on prior proceedings and was vexatious under Order 2 rule 15. The Plaintiff responded that the estate's administrators, appointed on 3/7/15, failed to seek substitution, disclosed the prior suit in the amended plaint, and relied on Vamos & Partners to oppose revival as the only remedy. The court framed the sole issue as whether the objection was a point of law capable of disposing the suit. Applying the Mukisa Biscuit definition, it found the prior suit abated on 24/11/15, that both suits concerned the same subject matter, remedies and parties, and that Order 24 rule 7 is mandatory, leaving the Plaintiff only an application for revival of the abated suit. Upholding the objection, the court struck out the suit with costs to the 1st to 6th Defendants.

Key legal issues

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01

Whether a preliminary objection on abatement is a pure point of law

Holding

The objection qualified as a preliminary objection under the Mukisa Biscuit definition since it could dispose of the suit on pleaded law

Reasoning

The court applied the classic Mukisa Biscuit test, holding that an objection grounded on Order 24 rule 7 arises by clear implication out of the pleadings and, if sustained, disposes of the entire suit without needing to descend to the merits or disputed facts.

p. 3
02

Whether the prior suit Murang'a CMCC No. 342 of 2014 abated

Holding

The prior suit abated on 24/11/15, one year after the original defendant's death on 23/11/14, because no substitution application was made within twelve months

Reasoning

The cause of action concerned land and therefore survived the defendant's death. Under Order 24 rule 4, the plaintiff had one year to apply to have the deceased defendant's legal representative joined. The lower court file showed no such substitution, so the suit abated by operation of law.

p. 3
03

Whether the fresh suit offended Order 24 rule 7

Holding

Yes - the instant suit was on the same subject matter, seeking the same remedies against the same parties as the abated suit, and was therefore struck out

Reasoning

Both suits sought transfer of the same parcel or refund of Ksh.41,000/= plus interest. The plaintiff, though represented by counsel, abandoned the abated suit and filed a fresh one, breaching the mandatory bar in Order 24 rule 7. The only avenue left was an application for revival of the abated suit under Order 24 rule 2.

p. 3
04

Whether the plaint offended Order 4 rule 1(1)(f) for lack of an averment on previous proceedings

Holding

Not decisively determined; the plaintiff contended the averment appeared in paragraphs 16 and 17 of the amended plaint, and the objection was superseded by the Order 24 rule 7 ruling

Reasoning

The 7th Defendant argued the plaint lacked the required averment that no previous proceedings existed between the parties. The plaintiff responded that the disclosure appeared in paragraphs 16 and 17 of the amended plaint filed on 18/5/17 and served on the 7th Defendant. The court did not make an express finding on this ground, the suit having been struck out on the abatement point.

p. 2

Legal principles established

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  • Order 24 rule 7 of the Civil Procedure Rules is mandatory: where a suit has abated, no fresh suit may be brought on the same cause of action; the remedy is revival of the abated suit under Order 24 rule 2.

Court orders

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  1. 1.The Preliminary Objection is upheld
  2. 2.The suit is struck out for being in contravention of the provisions of Order 24 rule 7
  3. 3.Costs of the suit to the 1st to 6th Defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2012 (Cap. 21)Order 24 rules 1, 2, 3(1), 4(1), 4(2), 4(3), 5, 7(1)
  • Civil Procedure Rules, 2012Order 4 rule 1(1)(f)
  • Civil Procedure Rules, 2012Order 2 rule 15

Cases cited (5)

  • Said Sweilem Gheithan Saanum Vs AG & 5 others
    CA No 16 of 2015
  • Leonard Mutua Mutevu Vs Benson Katela Ole Kantai & Another
    Misc Application (2014) EKLR
  • Jimna Minai Wangonya Vs Julius Macharia Mwangi
    ELC No 493 of 2017-Muranga
  • Vamos & Partners Vs Hassan
    No 412 of 1962 EALR at page 644
  • Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd
    [1969] E.A 696
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (suit relating to land parcel No. Loc.18/MARUMI/213); Civil Procedure Rules, Order 24

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kuria Mwangi v Samuel Kirumba Kariuki [2019] KEELC 3977 (KLR)", Case Analysis (2019). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3977/eng@2019-03-28

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