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ELCAllowedNot stated in judgment· [2020] KEELC 681 (KLR)

John Musyoka Musembi (Suing as Legal Representative of Estate of Nason Musembi Musomba (Deceased) v Henry Muli Kisenga & another [2020] KEELC 681 (KLR)

Environment and Land Court
13 November 2020
OAO. A. Angote
617 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A land lawsuit does not die with the plaintiff — family members can step in within one year using a limited grant to continue the case.

What this practically means

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Executive summary

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By a Notice of Motion dated 29th November 2019, Priscilla Musyoka Musembi sought to be substituted for the deceased plaintiff, John Musyoka Musembi, who died on 8th March 2019, in a land suit, with costs in the cause. She deponed that she was the deceased's wife, was petitioning for letters of administration intestate, and that the cause of action, being land, survived the deceased; the application was made within one year of death as required by Order 24 of the Civil Procedure Rules. The defendant opposed, arguing the applicant lacked capacity and that succession proceedings (Succession Cause No. 609 of 2008) were already under way, so she should await appointment of the estate's legal representatives. In a Further Affidavit the applicant produced a Limited Grant of Letters of Administration Ad Litem dated 22nd July 2020, issued in Chief Magistrate's Court Succession Cause No. 46 of 2020. The court found the subject matter was land, so the cause of action survived the deceased; the application, filed on 2nd December 2019, was within the one-year period before abatement; and the ad litem grant gave the applicant the legal mandate to prosecute the suit. The court allowed the application, ordering substitution within twenty-one days and that costs of the application be in the cause. Judgment was delivered in Machakos on 13th November 2020 by Angote J.

Key legal issues

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01

Substitution of a deceased plaintiff and abatement of the suit

Holding

Because the suit concerned land, the cause of action survived the deceased plaintiff; the substitution application was filed within one year of death, so the suit had not abated and the applicant, holding Letters of Administration Ad Litem, could be substituted

Reasoning

The court applied Order 24 Rules 1 and 3(2) of the Civil Procedure Rules, under which a suit does not abate on a party's death if the cause of action survives, and abates only where no substitution application is made within one year. The subject matter was land, so the cause of action survived. The application was filed on 2nd December 2019, within one year of the plaintiff's death on 8th March 2019. The applicant had obtained Letters of Administration Ad Litem on 22nd July 2020, giving her the legal mandate to prosecute the suit, answering the defendant's capacity objection.

p. 2

Legal principles established

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  • The death of a plaintiff does not cause the suit to abate where the cause of action survives, and a suit abates only if no application for substitution is made within one year of death

Court orders

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  1. 1.The Plaintiff, John Musyoka Musembi, who died on 8th March 2019, be substituted with Priscilla Musyoka Musembi within twenty one (21) days
  2. 2.The costs of the Application be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 24, Rules 1 and 3(2)
Jurisdiction invoked
Order 24, Rules 1 and 3(2) of the Civil Procedure Rules; the court's inherent jurisdiction to make orders in the interest of justice

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, "John Musyoka Musembi (Suing as Legal Representative of Estate of Nason Musembi Musomba (Deceased) v Henry Muli Kisenga & another [2020] KEELC 681 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/681/eng@2020-11-13

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