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ELCAllowed(Notice of Motion dated 11th October, 2018)· [2019] KEELC 4372 (KLR)

Rhoda Ndini Nzioka v District Land Registrar, Machakos & 3 others [2019] KEELC 4372 (KLR)

Environment and Land Court
28 February 2019
OAO.A. Angote
700 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 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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This was a Notice of Motion dated 11th October 2018 in which the administrator of a deceased Plaintiff sought to set aside an order marking the suit as abated, to revive the suit, to be substituted as the Plaintiff's legal representative, and to amend the Plaint. The Plaintiff had died on 19th April 2013 after testifying and closing her case, with the matter pending the Defence hearing. An earlier substitution application dated 27th September 2013 was dismissed because the applicant lacked Letters of Administration, which the Succession Court in Machakos Succession Cause No. 420 of 2013 only issued on 16th July 2018, the delay being attributable to objections raised by the 3rd Defendant. The Succession Court had also held that the alleged fraudulent registration of the suit land in the 3rd Defendant's name could only be determined in this suit. The 3rd Defendant opposed via Grounds of Opposition, arguing the suit did not survive the Plaintiff and that a similar application had already been determined. The court, applying Order 24 Rule 7(2) of the Civil Procedure Rules, held that the Applicant had shown sufficient cause, since substitution was only possible after the grant issued, and that the Plaintiff would be prejudiced if her closed case collapsed through no fault of hers. The court allowed the motion, set aside the abatement order, revived the suit, ordered substitution and the filing of an Amended Plaint within fourteen days, with costs in the cause.

Key legal issues

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01

Revival of an abated suit and substitution of a deceased plaintiff

Holding

Application allowed; the order of abatement was set aside and the suit revived with substitution of the deceased Plaintiff by her legal representative.

Reasoning

The Plaintiff died after testifying and closing her case. Her administrator filed a succession cause promptly, but objections by the 3rd Defendant delayed the grant of Letters of Administration until 16th July 2018. Substitution could only occur once the grant issued, so the delay was adequately explained and amounted to sufficient cause; the plaintiff would be prejudiced if the suit collapsed.

p. 2
02

Effect of prior dismissal of a 2013 substitution application

Holding

The earlier dismissal did not bar revival because the administrator then lacked Letters of Administration, which were only issued on 16th July 2018.

Reasoning

The court distinguished the earlier failed substitution application: the administrator had no legal capacity then. Once the grant issued, and given the Succession Court's judgment directing that the fraud issue be determined in this suit, revival served the interests of justice.

p. 1

Legal principles established

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  • Order 24 Rule 7(2) of the Civil Procedure Rules allows a party to apply for revival of an abated suit or setting aside of an order of dismissal on such terms as to costs as the court thinks fit.
  • Sufficient cause for revival is shown where substitution was only possible after conclusion of a contested succession cause; a plaintiff who had closed her case should not be prejudiced by delay attributable to the succession court.

Court orders

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  1. 1.The order marking the suit as abated be and is hereby set aside.
  2. 2.This suit be and is hereby revived and the Plaintiff be substituted by her legal representative.
  3. 3.The Plaintiff to file an Amended Plaint within fourteen (14) days from today.
  4. 4.The costs of the Application to be in the cause.

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 7(2)
Jurisdiction invoked
Order 24 Rule 7(2) of the Civil Procedure Rules (revival of abated suit / setting aside dismissal)

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, "Rhoda Ndini Nzioka v District Land Registrar, Machakos & 3 others [2019] KEELC 4372 (KLR)", Case Analysis (2019). (Notice of Motion dated 11th October, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4372/eng@2019-02-28

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