Joel Kipruto Puluny & another v Benter Atieno Oluoch [2020] KEELC 2938 (KLR)
The bottom line
#The Kericho Environment and Land Court threw out a son's attempt to take over his late father's land case because he waited too long and filed the wrong application.
What this practically means
#Executive summary
#Key legal issues
#Abatement of suit and consequence of failure to substitute a deceased plaintiff within one year
The suit abated on 9th January 2017 when one year lapsed without substitution, and remains abated as an existing suit
Order 24 rule 3(1) requires the legal representative of a deceased plaintiff to be made a party on application; rule 3(2) provides that the suit abates after one year if no substitution is done. The deceased plaintiff died on 9th January 2016 and the substitution application was filed close to three years later, with the delay unexplained. The applicant's submissions were largely silent on abatement.
Competence of a substitution application in an abated suit without prior revival
The application was wrongly contextualised and incompetent; revival under Order 24 rule 7(2) should have been sought first, and extension of time under Order 50 rule 6 was available
The court held that the applicant should have applied to revive the abated suit before seeking substitution, and could also have invoked Order 50 rule 6 for enlargement of time. His predicament stemmed from failure to appreciate the importance of procedure, rendering the application before the court incompetent.
Legal principles established
#- Where a suit abates for want of substitution of a deceased plaintiff within one year, an application for substitution in the abated suit is incompetent; the applicant must first seek revival of the suit under Order 24 rule 7(2), and may invoke Order 50 rule 6 for extension of time
Court orders
#- 1.The application dated 3rd July 2019 is dismissed with costs
- Jurisdiction invoked
- Order 24 Rules 1 & 3 of the Civil Procedure Rules; Sections 3 and 3A of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joel Kipruto Puluny & another v Benter Atieno Oluoch [2020] KEELC 2938 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2938/eng@2020-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.