Laban Masinjila & 2 others v Joshua Andala Masinjila & 2 others [2021] KEELC 319 (KLR)

Environment and Land Court of Kenya

14 December 2021

DOD. O. Ohungo

1,189 words in judgment

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The bottom line

When someone you are suing in Kenya dies, you must apply to substitute them quickly; wait too long and the case automatically ends.

What this practically means

Executive summary

This ruling of the Environment and Land Court at Kakamega (D. O. Ohungo, J) determined two Notices of Motion seeking substitution of deceased defendants in a land dispute. The first and second plaintiffs sought substitution of the deceased 1st defendant, Joshua Andala Masinjila, by his widow Robai Khanyerere; the third plaintiff sought substitution of the deceased 2nd defendant, Daniel Mwisunji Masinjila, by his widow Roselyne Shitiali Namutali. The proposed substitutees opposed, arguing they were not named as parties to the applications and could not be liable for fraud alleged against their late husbands, since any order would bind the estates and not them personally. The court first held that the widows were properly before it because they were named in the prayers and fully exercised their right to be heard; insisting on their appearance in the case title would be absurd and contrary to the overriding objective, applying Coast Development Authority v Adam Kazungu Mzamba. On the substance, the court found that the substitution applications were filed long after the deaths - over three years for the 1st defendant and over four and a half years for the 2nd - so under Order 24 Rule 4(3) the suits against them had abated in June 2019 and December 2017 respectively. Abatement closes proceedings against a deceased party with the finality of a judgment, and no application for revival or reinstatement had been made; ordering substitution would be an order in vain and a nullity. The court dismissed both applications with costs in the cause.

Key legal issues

Whether the proposed substitutees, not named in the titles of the applications, were properly before the court

Holding

They were parties to the applications because they were specifically named in the prayers and were given and utilised the opportunity to be heard

Reasoning

The court held that insisting on naming the respondents in the case title would be absurd and contrary to the overriding objective, which favours just, expeditious, proportionate and accessible resolution of disputes without undue regard to technicalities, relying on Coast Development Authority v Adam Kazungu Mzamba.

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Whether substitution of the deceased first and second defendants could be ordered

Holding

No; the suits against them had abated under Order 24 Rule 4(3) and no application for revival or reinstatement had been made

Reasoning

The substitution applications were filed over three and four and a half years respectively after the deaths, so the suits abated automatically. Abatement closes proceedings against the deceased with the finality of a judgment, and Order 24 Rule 7(1) bars a fresh suit on the same cause. Substitution in an abated suit would be an order in vain and a nullity; even revival would require the applicants to satisfy the court they deserve it.

p. 2

Legal principles established

Abatement of a suit against a deceased party brings the proceedings to a close with the finality of a judgment, and no fresh suit may be brought on the same cause of action
A court does not issue orders in vain; substitution of a party in a suit that has abated would be a nullity
Procedural technicalities as to naming a party in the title of a motion should yield to the overriding objective where the party was named in the prayers and heard

Court orders

1.Notice of Motion dated 10th June 2021 dismissed
2.Notice of Motion dated 25th June 2021 dismissed
3.Costs shall be in the cause

Authorities

Legislation

Civil Procedure RulesOrder 24 Rule 4(3)
Civil Procedure RulesOrder 24 Rule 7(1)

Cases cited (1)

Coast Development Authority v Adam Kazungu Mzamba & 49 others
[2016] eKLR

Jurisdiction invoked: Inherent jurisdiction of the court under the Civil Procedure Act and Civil Procedure Rules (Order 24) to determine substitution applications in a pending suit

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Laban Masinjila & 2 others v Joshua Andala Masinjila & 2 others [2021] KEELC 319 (KLR)", Case Analysis (2021). Not stated on the face of the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/319/eng@2021-12-14

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