Mary Waithera Gikima & another v Kariuki Wairagu & 3 others [2020] KEELC 315 (KLR)
The bottom line
#A Kenyan court confirmed that even when a lawsuit against a deceased person dies out after one year, the court can revive it if the delay was genuinely unavoidable.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit against the deceased 1st Defendant had abated under Order 24 rule 4(3)
Yes - the suit abated one year after the 1st Defendant's death because the substitution had not been effected within that period, although the extension application was filed in time.
Order 24 rule 4(3) provides that where within one year no application is made to cause the legal representative of a deceased defendant to be made a party, the suit abates against the deceased defendant. The 1st Defendant died on 26th March 2019 and the substitution had not occurred when the one-year period lapsed, so the suit abated against him.
Whether sufficient cause was shown to justify extension of time for substitution
Yes - the Applicant only learnt of the death after six months, no one had taken out Letters of Administration, and there was no one to substitute at the time.
The Court found that the Applicant learnt of the death only when advocates filed an application to cease acting in September 2019; the family had not taken out Letters of Administration, so there was no legal representative available to be substituted. The prior stay of the suit meant no prejudice would be occasioned to the other Defendants if the extension was granted.
Whether the procedural sequence under Order 24 requires extension of time before joinder or revival
Yes - time must first be extended before an application for joinder or revival can competently be made, though an omnibus application for all prayers is permissible.
Relying on Rebecca Mijide Mungole v Kenya Power & Lighting Company Ltd, the Court adopted the Court of Appeal's guidance that Order 24 must be construed as a whole: the effluxion of time causes abatement, so time must first be enlarged before the legal representative can be joined and seek revival. An omnibus application is not objectionable, but joinder or revival cannot be granted without first extending time.
Legal principles established
#- Where no legal representative has been joined within one year of a party's death, the court may first extend time; only after enlargement can the legal representative be joined.
- The discretion to extend time and revive an abated suit is exercisable where sufficient cause is shown.
- A suit abates against a deceased defendant where no substitution is effected within one year of death, even if an extension application was filed within that period.
Court orders
#- 1.Time is extended to enable the 4th Defendant/Applicant to substitute the 1st Defendant, Kariuki Wairagu (Deceased), with his legal representatives
- 2.The suit against the 1st Defendant is deemed to be subsisting
- 3.Costs of the application are awarded to the 4th Defendant/Applicant
- Jurisdiction invoked
- Order 24 rule 4 of the Civil Procedure Rules and the inherent extension-of-time jurisdiction under the Civil Procedure Act (Sections 1A, 1B and 3A)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Waithera Gikima & another v Kariuki Wairagu & 3 others [2020] KEELC 315 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/315/eng@2020-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.