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ELCPartially AllowedNotice of Motion dated 17th October 2018 (Application by Plaintiff) and Notice of Motion dated 17th October 2018 (2nd Defendant)· [2019] KEELC 4228 (KLR)

Kenya Anti-Corruption Commission v Paul Lobo & 2 others (Environment & Land Case 175 of 2009) (Environment and Land) [2019] KEELC 4228 (KLR)

Environment and Land Court
18 March 2019
CYC.K. Yano
2,591 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Two competing applications dated 17th October 2018 arose in a suit instituted on 9th June 2009 by the Ethics and Anti-Corruption Commission against Paul Lobo and others over the unlawful acquisition and alienation of land (MN/1/12408) said to be public property of the Kenya Civil Aviation Authority. The 2nd Defendant sought a declaration that the suit against the 1st Defendant, who died on 22nd November 2010, had abated; the Plaintiff sought revival of the suit and substitution of the deceased with Sarah Maria Lobo and Myrtle Mary Desa, the Legal Representatives of his estate. The 3rd Defendant opposed, arguing inordinate and inexcusable delay, wide newspaper advertisement of the death in 2010, and that the claim was in personam and died with the deceased. The court reviewed Order 24 of the Civil Procedure Rules and the procedural history, finding that all parties, including the 1st Defendant's own advocates, continued to litigate as though the 1st Defendant were alive until his advocates filed a list of documents with the Grant of Probate on 18th September 2018, when the Plaintiff first learned of the death. This constituted sufficient cause for the failure to substitute within one year, and the court exercised its discretion in the Plaintiff's favour, allowing revival and substitution. The 2nd Defendant's abatement application failed. The court declined to determine, at an interlocutory stage, whether the cause of action was in rem or in personam, holding that merits issues fall for trial. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether sufficient cause was shown for failure to apply for substitution within one year of the deceased 1st Defendant's death

Holding

Yes - the Plaintiff lacked knowledge of the death until served with the 1st Defendant's list of documents on 18th September 2018; discretion exercised in its favour

Reasoning

The court reviewed the record and found that all parties, including the 1st Defendant's own advocates, continued to participate in the litigation as though the 1st Defendant were alive, and even intimated readiness for hearing. The Plaintiff only learned of the death on 18th September 2018 when served with the Grant of Probate, Death Certificate and newspaper cutting. This ignorance amounted to sufficient cause under Order 24 Rule 7(2).

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02

Whether the cause of action is in rem or in personam so as to determine survival of the claim

Holding

Premature - such merits-based issues fall for determination at the hearing, not on interlocutory applications

Reasoning

Counsel for the 2nd and 3rd Defendants argued the claim was in personam and died with the deceased. The court held that it would be inappropriate to delve into the merits of the suit at this interlocutory stage; whether the cause is in rem or in personam can best be determined upon hearing on merit and cannot be resolved through submissions.

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Legal principles established

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  • The court has discretion to extend time for substitution of parties and to revive a suit that has abated if sufficient cause is shown
  • Ignorance of a defendant's death, where the parties and their advocates continued litigating as though the defendant were alive, constitutes sufficient cause for failure to seek substitution within one year

Court orders

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  1. 1.The Plaintiff's Application dated 17th October 2018 seeking revival of the Suit against the deceased 1st Defendant and substitution of his Legal Representatives is allowed as prayed
  2. 2.The 2nd Defendant's Application dated 17th October 2018 seeking declaration that the Suit abated is declined/dismissed
  3. 3.Each party to bear their own costs of both Applications

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rules 1, 2, 4(1), 4(2), 4(3), 5, 6, 7(1), 7(2)
  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure ActSections 1A, 3A
  • Ethics and Anti-Corruption ActSection 11(1)
  • Law Reform Actnot specified
  • Constitution of KenyaArticles 159, 159(2)(d)(e), 40(6)
Jurisdiction invoked
Order 24 of the Civil Procedure Rules, read with Sections 1A and 3A of the Civil Procedure Act (inherent jurisdiction of the court)

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, "Kenya Anti-Corruption Commission v Paul Lobo & 2 others (Environment & Land Case 175 of 2009)  (Environment and Land) [2019] KEELC 4228 (KLR)", Case Analysis (2019). Notice of Motion dated 17th October 2018 (Application by Plaintiff) and Notice of Motion dated 17th October 2018 (2nd Defendant). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4228/eng@2019-03-18

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