Dismas Oduori Namalwa v Josephine Makokha Nakhama & another [2019] KEELC 5077 (KLR)
The bottom line
#A Kenyan court confirmed that if you don't apply to substitute a deceased defendant within one year, the case dies automatically and cannot be revived.
What this practically means
#Executive summary
#Key legal issues
#Abatement of suit upon death of a defendant without substitution within one year
The suit abated automatically one year after the Defendant's death, i.e. on 5th January 2012, and could not be revived.
Order 24 rule 4(1) and (3) provides that if an application for substitution is not made within one year of a defendant's death, the suit abates against the defendant. Unlike Order 23 rule 3 (death of a plaintiff), Order 24 has no proviso permitting extension of time. The court noted the filing of a cross-application to revive the suit was an implicit admission that the suit had abated.
Whether delay was excusable (citation proceedings, lost court file)
No. The record showed the plaintiff's counsel filed applications in the wrong forum and the lethargy was unexplained.
The court found the record largely aligned with the applicant's account. The plaintiff was represented yet pursued miscellaneous applications in the wrong forum, misfiled reconstruction documents, and repeatedly sought extensions without responding to the abatement application. Such conduct could not justify revival of an already abated suit.
Legal principles established
#- Where no application for substitution is made within one year of a defendant's death, the suit abates automatically against the defendant and Order 24 contains no provision extending that period, unlike Order 23 rule 3 for plaintiffs.
Court orders
#- 1.The Notice of Motion Application dated 5th July 2018 is allowed
- 2.The suit is declared to have abated against the Defendant and is dismissed
- 3.Costs to the Applicant
- Jurisdiction invoked
- Order 24 Rule 4(3) of the Civil Procedure Rules 2010 and section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dismas Oduori Namalwa v Josephine Makokha Nakhama & another [2019] KEELC 5077 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5077/eng@2019-09-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.