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ELCAllowedNairobi ELC No 132 of 2019· [2020] KEELC 419 (KLR)

Kigwe Service Stations & another v Agip Kenya Limited [2020] KEELC 419 (KLR)

Environment and Land Court
3 December 2020
1,939 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court revived a land dispute filed by a deceased man's estate, ruling that unexplained opposition and honest delay were not enough to kill the case.

What this practically means

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Executive summary

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This was a notice of motion dated 29/4/2019 brought by the estate of John Muritu Kigwe seeking enlargement of time to apply for substitution and revival of his suit, which abated in April 2015 following his death. The suit was registered in the Environment and Land Court as Nairobi ELC No 132 of 2019 after two consolidated High Court causes were transferred; the record was unclear as to the consolidation order and why the causes were registered as one suit. The applicant explained the delay by the untraceability of the court file, delay in obtaining the grant of letters of administration (obtained January 2018) and inadvertence of counsel. The respondent filed grounds of opposition and submissions but no replying affidavit, contending there was no sufficient cause, unexplained inordinate delay and probable prejudice. The court framed a single question: whether the applicant satisfied the criteria for exercising the discretionary jurisdiction to extend time under Order 24 rule 7(2). Applying the liberal construction of 'sufficient cause' in Rebecca Mijide Mungole and the equity approach in Philip Chemwolo, and guided by Article 159's substantive justice paradigm, the court held that because the allegations of unintentional delay and counsel's inadvertence were uncontroverted and no probable prejudice was demonstrated, sufficient cause was established. The court enlarged time for substitution, substituted Susan Wanjiru Muritu as administrator in place of the deceased, revived both the suit and the defendant's counter-claim (being co-joined with joinder of issues), and transferred the two causes to Thika Environment and Land Court, the suit property being located in Thika Town. No costs were awarded.

Key legal issues

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01

Whether sufficient cause was demonstrated to enlarge time and revive the abated suit under Order 24 rule 7(2)

Holding

Yes. The respondent filed no replying affidavit, so the applicant's evidence was uncontroverted; no probable prejudice was demonstrated; and the explanations - untraceable court file, delay in obtaining the grant of letters of administration and inadvertence of counsel - were accepted as sufficient cause.

Reasoning

The court applied the liberal construction of 'sufficient cause' in Rebecca Mijide Mungole, guided by Article 159's substantive justice paradigm and the equity approach in Philip Chemwolo that mistakes should not deprive a party of a hearing on the merits unless there is fraud or intention to overreach. The suit abated in April 2015 following the deceased's death; the grant was obtained in January 2018 and the application filed on 29/4/2019. Because the allegations of unintentional delay and inadvertence were uncontroverted, the court accepted them as sufficient cause, extended time, substituted the administrator, and revived both the suit and the co-joined counter-claim for complete adjudication.

p. 2
02

Whether revival should extend to the defendant's counter-claim

Holding

Yes. The suit and counter-claim are co-joined with joinder of issues, so both were revived for complete and effectual adjudication.

Reasoning

The court noted that both the deceased's suit and the defendant's counter-claim abated in April 2015 and that there is joinder of issues between them. Reviving only the suit would leave the counter-claim unresolved. The court therefore revived both, observing that it would have awarded throw-away costs to the defendant but for the fact that the revival order inevitably covers the counter-claim as well.

p. 2

Legal principles established

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  • A suit that has abated can only be revived if the applicant demonstrates sufficient cause; uncontroverted allegations of unintentional delay and counsel's inadvertence may constitute sufficient cause.
  • Failure to file a replying affidavit leaves the applicant's evidence uncontroverted and relieves the respondent of any demonstrated prejudice.

Court orders

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  1. 1.The time for bringing an application for substitution of Susan Wanjiru Muritu in place of John Muritu Kigwe is deemed to have been enlarged
  2. 2.Susan Wanjiru Muritu is substituted in place of the late John Muritu Kigwe in her capacity as the administrator of his estate
  3. 3.Both the deceased's suit and the defendant's counter-claim are revived
  4. 4.The two causes are transferred to Thika Environment and Land Court for hearing and determination

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Civil Procedure RulesOrder 24 rule 7(2)
  • Law of Succession Act

Cases cited (8)

  • Murai v Murai
    (1982) KLR 38
  • Issa Masudi Mwabumba v Alice Kavenya Muhinga & 4 others
    [2012] eKLR
  • Wageche Muriyu Muturi v Muturi Mariyu
    [2013] eKLR
  • Nicholas Arap Salat v Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR
  • Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others
    [2017] eKLR
  • The Hon Attorney General v The Law Society of Kenya & Another
    Civil Appeal (application) No 133 of 2011
  • Said Sweilem Gheilhan Saanum v Commissioner of Lands & 5 Others
    [2015] eKLR
  • Philip Chemwolo & Another v Augustine Kubede
    (1982-88) KAR 103
Jurisdiction invoked
Order 24 rule 7(2) of the Civil Procedure Rules; Article 159 of the Constitution

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, "Kigwe Service Stations & another v Agip Kenya Limited [2020] KEELC 419 (KLR)", Case Analysis (2020). Nairobi ELC No 132 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/419/eng@2020-12-03

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