Peter Mbuthia Kamore v Macharia Kamore & another; Paul Maina Mbuthia & 2 others (Interested Parties) [2020] KEELC 519 (KLR)
The bottom line
#A Kenyan land suit filed in 1977 died automatically when no one replaced the deceased parties within a year, and the court refused to revive it through substitution.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit had abated under Order 24 of the Civil Procedure Rules
The suit had abated against all the original deceased parties as no substitution applications were made within one year of their respective deaths
The Plaintiff died on 5th August 2007 and the suit against him abated on 5th August 2008; the 1st Defendant's case abated in 1992. No substitution applications were made within one year. Applying Order 24 Rules 3 and 4, abatement occurs automatically upon the lapse of one year, and the effect is that the suit ceases to exist in law. The Court of Appeal in Said Sweilem confirmed that abatement takes place by its own force without a formal order.
Whether substitution/joinder could be granted into an abated suit
It could not; an abated suit is non-existent prior to revival, so the substitution application necessarily failed
Since the suit had abated, there was no live suit into which the Applicants could be substituted or enjoined. The proper course for a legal representative is an application for revival of the abated suit showing sufficient cause for the delay, which was not what was sought. The Applicants' grievances about orders issued after abatement being a nullity were issues of law capable of being raised on appeal.
Whether irregularities in the conduct of the suit (joinder and orders after abatement) could be addressed in this application
No; issues of abatement and propriety of joinder are issues of law that can only be raised on appeal
The Court noted that various errors were committed on the face of the record, including allowing joinder of parties to an already abated suit and granting orders to parties joined without application. However, because these were issues of law, the Court held they could only be raised in an appeal, not in the present substitution application.
Legal principles established
#- Upon death of a sole Plaintiff, if substitution of the legal representative is not effected within one year, the suit abates and ceases to exist in the eye of the law
- Abatement takes effect automatically by passage of time without the need for a formal order, though for convenience an order recording it is necessary for final and effectual disposal
- An application to substitute the legal representative of a deceased Defendant may be made by any party to the proceedings, not only the Plaintiff
Court orders
#- 1.The application for substitution was dismissed by implication, the Court holding there was no suit before it to substitute into
- 2.No substitution orders were granted
- Jurisdiction invoked
- Order 1 Rules 10 and 11 of the Civil Procedure Rules; Sections 3A and 63(e) of the Civil Procedure Act (inherent jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Mbuthia Kamore v Macharia Kamore & another; Paul Maina Mbuthia & 2 others (Interested Parties) [2020] KEELC 519 (KLR)", Case Analysis (2020). Notice of Motion dated 27th March 2019 (in the 1977 suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/519/eng@2020-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.