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ELCAllowedAmended Notice of Motion dated 24th May 2019 (suit number not stated in the ruling)· [2020] KEELC 3280 (KLR)

Veronica Wangeci Theuri v Anastacia Nyanjui Gikonyo (Sued as the administrator of the estate of John N. Gikonyo (deceased) (Environment & Land Case 261 of 2015) [2020] KEELC 3280 (KLR)

Environment and Land Court
12 March 2020
DOD. O. Ohungo
1,020 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 can revive a land case that lapsed when the plaintiff died, if a family member with a limited grant shows good reason for the delay.

What this practically means

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Executive summary

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This ruling by D. O. Ohungo J of the Environment and Land Court at Nakuru, delivered on 12th March 2020, determined an Amended Notice of Motion dated 24th May 2019 by John Theuri seeking revival of a suit and substitution of himself for the deceased plaintiff, Veronica Wangeci Theuri, who died on 27th August 2017. The applicant held a Limited Grant Ad Litem issued on 9th February 2018 for the purpose of prosecuting the case. The defendant opposed, describing the application as incurably defective, arguing the application was filed nearly 3 years after the plaintiff's death without explanation for the delay, and that the applicant held only a limited grant so could not be granted substantive relief under prayer (b) of the originating summons. The court applied Order 24 rules 3(1) and 7(2) of the Civil Procedure Rules. It found that the applicant, by virtue of the limited grant, was a legal representative of the deceased plaintiff; that an initial substitution application dated 18th May 2018 was filed before the suit abated on 27th August 2018; and that the roughly three-month delay after obtaining the grant was not unreasonable. The court held that Order 24 does not require an enquiry into the merits of the plaintiff's case at this stage, that the question of substantive relief under prayer (b) is for the trial court, and that the applicant may well obtain a full grant before trial. Allowing the application, the court revived the suit, substituted John Theuri for the deceased plaintiff, directed filing of an amended plaint and, if necessary, an amended defence within 14 days, and ordered costs of the application to be in the cause.

Key legal issues

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01

Revival of abated suit under Order 24 rule 7(2)

Holding

Suit revived since the applicant proved sufficient cause; the initial substitution application dated 18th May 2018 was filed before the suit abated.

Reasoning

Order 24 rule 7(2) allows a legal representative to apply to revive an abated suit where prevented by sufficient cause from continuing the suit. The applicant had applied for substitution on 18th May 2018, before abatement on 27th August 2018, and the delay after obtaining the limited grant was about 3 months, held reasonable.

p. 2
02

Sufficiency of a limited grant

Holding

Limited Grant Ad Litem suffices for revival and substitution; merits and any substantive relief are matters for trial.

Reasoning

The defendant argued the applicant holds only a limited grant and could not benefit from prayer (b) of the originating summons. The court held the court may not enquire into merits at this stage and the applicant may obtain a full grant by trial, so there was no basis for shutting him out.

p. 2

Legal principles established

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  • A holder of a Limited Grant Ad Litem is a legal representative of a deceased plaintiff for purposes of Order 24 rules 3(1) and 7(2).
  • An application to revive an abated suit need only show sufficient cause; the court is not required to enquire into the merits of the suit at that stage.

Court orders

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  1. 1.This suit is hereby revived.
  2. 2.The plaintiff Veronica Wangeci Theuri is substituted with John Theuri.
  3. 3.The new plaintiff to file and serve an amended plaint within 14 days of delivery of the ruling.
  4. 4.The defendant to file and serve amended defence, if need be, within 14 days of service of the amended plaint.
  5. 5.Costs of the application shall be in the cause.

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 3
  • Civil Procedure RulesOrder 24 rule 7(2)
Jurisdiction invoked
Order 24 rules 3 and 7(2) of the Civil Procedure Rules

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, "Veronica Wangeci Theuri v Anastacia Nyanjui Gikonyo (Sued as the administrator of the estate of John N. Gikonyo (deceased) (Environment & Land Case 261 of 2015) [2020] KEELC 3280 (KLR)", Case Analysis (2020). Amended Notice of Motion dated 24th May 2019 (suit number not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3280/eng@2020-03-12

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