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ELCDismissed· [2021] KEELC 485 (KLR)

Said Baya Mwabaya & another v Suheel Ahmed Nazir & another [2021] KEELC 485 (KLR)

Environment and Land Court
9 December 2021
2,886 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court dismissed the plaintiffs' attempt to revive a long-neglected land dispute, confirming that delays and repeated applications carry real consequences.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny J., 9 December 2021) determined a preliminary objection by the 1st Defendant against the Plaintiffs' application of 23rd August 2021, which sought maintenance of status quo over Plot No. Kilifi/Kawala 'A'/Kadzonzo/309 and setting aside of the order of 22nd July 2021 dismissing the suit for want of prosecution. The objection raised abatement following the deaths of the 1st Plaintiff (23rd September 2015) and the sole 1st Defendant (20th July 2019) without substitution, res judicata, non-joinder of SBM Bank Kenya Limited, and functus officio. The court distilled three core issues: locus standi, res judicata and functus officio. It held that the surviving 2nd Plaintiff could not be locked out by the 1st Plaintiff's death, but that the suit against the deceased sole defendant abated after one year without substitution, and that counsel in fact knew of the death by July 2021, discrediting the claim of ignorance until September 2021. The injunction application was found to be a similar application already heard and determined by Muriithi J. on 11th December 2012, hence an abuse of court process. Applying the functus officio doctrine, the court held there was no existing suit on which orders could issue, the dismissal of 22nd July 2021 having been made in counsel's presence. The application was dismissed with costs to the defendant; the preliminary objection succeeded to the extent of the points of law raised. The court noted the applicant has other avenues for redress.

Key legal issues

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01

Whether the suit abated on the death of the 1st Plaintiff

Holding

It did not defeat the surviving plaintiff's claim; the 2nd plaintiff is alive and may proceed

Reasoning

Order 24 rule 1 provides that death of a party does not cause abatement where the cause of action survives. Order 24 rule 2 permits the suit to proceed at the instance of surviving plaintiffs. Since the 2nd plaintiff is alive, she cannot be locked out due to the 1st plaintiff's demise, subject to reinstatement of the dismissed suit.

p. 3
02

Whether the suit abated on the death of the sole 1st Defendant

Holding

The suit against the deceased defendant abated, but Order 24 rule 7(2) provides a window to revive

Reasoning

Under Order 24 rule 4(3), where no application for substitution of a deceased sole defendant is made within one year, the suit abates against him. The defendant died on 20th July 2019 and was never substituted. However rule 7(2) allows revival on proof of sufficient cause. The court found the plaintiffs' counsel was aware of the death as early as July 2021, contradicting their claim of ignorance until September 2021.

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Whether the application is res judicata

Holding

Yes - the injunction sought is a similar application already heard and determined; raising it again is an abuse of process

Reasoning

The plaintiffs had sought an identical injunction by notice of motion dated 30th March 2011; Muriithi J. declined and ordered possession given to the defendant on 11th December 2012, with no appeal. The court found the fresh status quo application was a similar application already determined and therefore an abuse of court process. The court also noted the George Kamau Kimani authority on the improper raising of res judicata by preliminary objection, though it proceeded to determine the matter on the merits.

p. 4
04

Whether the court is functus officio after dismissing the suit for want of prosecution

Holding

Yes - the dismissal of 22nd July 2021 stands and no sufficient cause was shown to set it aside

Reasoning

Applying the Supreme Court's exposition of functus officio in Raila Odinga v IEBC, the court held that a decision-maker's final decision cannot be revoked or varied by itself. The suit had been dismissed for want of prosecution on 22nd July 2021 in the presence of counsel, and counsel on record had acknowledged the defendant's death at the time. There being no existing suit, the application could not be entertained.

p. 4

Legal principles established

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  • Locus standi is a pure point of law touching on jurisdiction and should be resolved at the earliest opportunity
  • A ground of res judicata cannot properly be raised by way of preliminary objection where ascertainment of facts is required
  • Where there are more plaintiffs than one and one dies, the suit proceeds at the instance of the surviving plaintiff if the cause of action survives
  • A suit abates by operation of law when no substitution is made within one year of the death of a defendant
  • The functus officio doctrine expresses the principle of finality of adjudicative decisions

Court orders

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  1. 1.The plaintiff's application dated 23rd August 2021 is dismissed with costs to the defendant
  2. 2.The 1st Defendant's preliminary objection succeeds to the extent of the points of law raised

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 24 rules 1, 2, 4, 7(2); Order 21 [1]

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Mary Wambui Munene v. Peter Gichuki Kingara and Six Others
    Sup. Ct. Petition No. 7 of 2013; [2014] eKLR
  • George Kamau Kimani & 4 Others vs County Government of Trans Nzoia & Another
    (2014) eKLR
  • Raila Odinga & Others vs. IEBC & Others
    [2013] eKLR (Election Petitions Nos. 3, 4 & 5)
Jurisdiction invoked
Original civil jurisdiction; Article 159 of the Constitution of Kenya, 2010 and sections 1A, 1B and 3A of the Civil Procedure Act invoked by the plaintiff

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, "Said Baya Mwabaya & another v Suheel Ahmed Nazir & another [2021] KEELC 485 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/485/eng@2021-12-09

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