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ELCDismissedNot stated in the judgment· [2020] KEELC 3681 (KLR)

Kiura Ndwiga v Albert Njeru; Aloice Ngari Dishon(Proposed Intended Plaintiff/Applicant) [2020] KEELC 3681 (KLR)

Environment and Land Court of Kenya (not expressly stated; sitting at Embu)
16 January 2020
YAY.M. Angima
1,295 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Embu Environment and Land Court dismissed a family's six-year-delayed attempt to revive a dead man's land case, ruling family disagreements don't excuse inaction.

What this practically means

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Executive summary

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By a notice of motion dated 26th July 2019, the Applicant sought extension of time to substitute himself for the deceased Plaintiff, Kiura Ndwiga, amendment of the plaint, revival of a suit filed in December 2010, setting aside of orders of 12th March 2018 declaring the suit abated, and a temporary injunction over six land parcels in Nthawa/Riandu. The application, brought under Order 24 Rules 3 and 4 and Order 10 Rule 11 of the Civil Procedure Rules and related provisions, was argued ex parte as the Defendants neither filed a response nor attended the hearing. The court, Y.M. Angima J, held that even an unopposed application must still satisfy the statutory thresholds of good reason under Order 24 Rule 3 and sufficient cause under Order 24 Rule 7. The Applicant's explanation that he was unaware of the suit was rejected as implausible, since one of the deceased's sons, Anthony Ngari Kiura, had lodged cautions against the suit properties and was the 2nd Defendant in the counterclaim, showing the family's awareness of the litigation. The claim of family disunity arising from the deceased's polygamous marriages was also rejected, the court holding that a deceased litigant's family may not keep a suit pending for years due to internal disagreements, and that a personal representative must act with reasonable dispatch. The court found the Applicant indolent and dismissed the motion with no order as to costs.

Key legal issues

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01

Whether good reason and sufficient cause were shown for revival of an abated suit and extension of time for substitution

Holding

No good reason or sufficient cause was demonstrated; the application was dismissed despite being unopposed

Reasoning

The suit was filed in December 2010, the Plaintiff died in 2013, and the application for revival and substitution was only filed in July 2019, with the suit declared abated in March 2018. The claim that the family was unaware of the suit was contradicted by the fact that one of the deceased's sons, Anthony Ngari Kiura, lodged cautions against the suit properties and is the 2nd Defendant in the counterclaim. Family disunity among the deceased's four wives was not a valid excuse.

p. 2

Legal principles established

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  • Whoever files a suit must prosecute it expeditiously, and upon the litigant's death the personal representative must act with reasonable dispatch in seeking substitution and revival; internal family disagreements are not a good reason for delay
  • A party seeking the exercise of judicial discretion must act diligently; indolence disqualifies the applicant

Court orders

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  1. 1.The Applicant's notice of motion dated 26th July 2019 is dismissed with no order as to costs
Jurisdiction invoked
Order 24 Rules 3 and 4 and Order 10 Rule 11 of the Civil Procedure Rules; Sections 1A, 1B, 3A, 63(e) and 80 of the Civil Procedure Act (Cap. 21); Article 159 of the Constitution of Kenya, 2010

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, "Kiura Ndwiga v Albert Njeru; Aloice Ngari Dishon(Proposed Intended Plaintiff/Applicant) [2020] KEELC 3681 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3681/eng@2020-01-16

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