Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially Allowed· [2019] KEELC 5077 (KLR)

Dismas Oduori Namalwa v Josephine Makokha Nakhama & another [2019] KEELC 5077 (KLR)

High Court of Kenya (Busia)
11 September 2019
1,062 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

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

#
The Applicant, Robert Oundo Nakhama, as personal representative of the estate of the deceased Defendant, Josephine Makokha Nakhama (who died on 5th January 2011), applied under Order 24 Rule 4(3) of the Civil Procedure Rules 2010 and section 3A of the Civil Procedure Act for a declaration that the suit had abated against the Defendant since no substitution occurred within one year of her death. The Plaintiff did not respond but instead filed a cross-application under Order 24 Rule 7 seeking revival of the suit and substitution, blaming delays on citation proceedings in a miscellaneous file, a mistakenly filed earlier revival application, and the loss and reconstruction of the court file. Both sides filed written submissions; the Applicant relied on George Kirima v Rufus Kiambati (2013) eKLR on abatement, while the Respondent invoked the overriding objective, Article 48 on access to justice, and the court's inherent powers. The court found the record consistent with the Applicant's account, noting the Plaintiff's counsel's 'incomprehensible lethargy', applications in the wrong forum, misfiled reconstruction documents, and repeated extensions without a response. Adopting the Kirima decision, the court held that Order 24, unlike Order 23 rule 3, contains no proviso extending time for substitution after a defendant's death; the suit therefore abated automatically on 5th January 2012, rendering the revival application bad in law. The Notice of Motion dated 5th July 2018 was allowed, effectively dismissing the case, with costs to the Applicant.

Key legal issues

#
01

Abatement of suit upon death of a defendant without substitution within one year

Holding

The suit abated automatically one year after the Defendant's death, i.e. on 5th January 2012, and could not be revived.

Reasoning

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.

p. 2
02

Whether delay was excusable (citation proceedings, lost court file)

Holding

No. The record showed the plaintiff's counsel filed applications in the wrong forum and the lethargy was unexplained.

Reasoning

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.

p. 2

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. 1.The Notice of Motion Application dated 5th July 2018 is allowed
  2. 2.The suit is declared to have abated against the Defendant and is dismissed
  3. 3.Costs to the Applicant

Authorities

#

Legislation

  • Civil Procedure Rules 2010Order 24 Rule 4(3)
  • Civil Procedure Rules 2010Order 24 Rule 7(2)
  • Civil Procedure Rules 2010Order 24 rules 4(1) and (3)
  • Civil Procedure Rules 2010Order 23 rule 3
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 2A
  • Constitution of KenyaArticle 48

Cases cited (1)

  • GEORGE KIRIMA VS RUFUS KIAMBATI
    (2013) eKLR
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.