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ELCDismissedNairobi HCC Case (Plaint dated 22nd August 2007; Applications dated 8th July 2020 and 4th November 2020)· [2021] KEELC 754 (KLR)

Union of Kenya Civil Servant v John Silas Nyamato & 2 others; Isaac Gathungu Wanjohi & 4 others (Proposed Interested Parties) [2021] KEELC 754 (KLR)

Environment and Land Court
11 November 2021
6,018 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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Kenya's Environment and Land Court struck out a 14-year-old land suit because the union delayed too long, sued the wrong entity, and waited past the legal deadline after a defendant died.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Milimani (Oguttu Mboya J, 11th November 2021) determined two applications in a long-running land suit over LR No 201/674, Nature House, along Tom Mboya Street, Nairobi. The Plaintiff union sought leave for substituted service, substitution of the deceased 1st Defendant with his estate's administratrix, joinder of the purchasers of the suit property as 4th-6th Defendants, and leave to amend its 2007 Plaint. The 2nd Defendant sought striking out of the Plaint as disclosing no reasonable cause of action and as an abuse of process. The court held that the suit against the deceased 1st Defendant abated automatically on 26th January 2016, twelve months after his death, which the Plaintiff knew of from as early as February 2015, and that substitution cannot be ordered absent an application for reinstatement of the abated suit. Joinder and amendment were refused for unexplained inordinate delay of fourteen years - the Plaintiff's own documents showed knowledge of the transfer since 2002/2003 - and because the intended claim was statute-barred under Section 7 of the Limitation of Actions Act. The court further found the Plaintiff, established only in 2002, was a distinct legal entity from its deregistered predecessor and thus lacked locus standi. Finally, since the transfer of the suit property rested on an unimpeached consent order in Nairobi HCC No. 4799 of 1987, the suit was a collateral attack and an abuse of process. The Plaintiff's application was dismissed, the Plaint struck out, and costs awarded to the 2nd Defendant.

Key legal issues

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01

Whether the suit against the deceased 1st Defendant abated and whether substitution could be ordered

Holding

The suit abated automatically on 26th January 2016, 12 months after the 1st Defendant's death on 27th January 2015; substitution cannot be granted as no application for reinstatement of the abated suit was filed

Reasoning

The Plaintiff knew of the death from the obituary of 4th February 2015 and from the advocates' application of 14th July 2015, and of the succession cause gazetted 8th December 2015, yet made no substitution application within 12 months nor sought reinstatement of the abated suit. Abatement is automatic by operation of law under Order 24 Rule 3(2) and only substitution is sought, which cannot survive abatement.

p. 5
02

Whether joinder of proposed 4th-6th Defendants and amendment of the Plaint should be allowed

Holding

Refused - the application was made after 14 years of unexplained delay (the Plaintiff knew of the transfer from its own 2002/2003 documents), the Plaintiff was guilty of laches, and the intended claim is statute-barred under Section 7 of the Limitation of Actions Act

Reasoning

The Plaintiff's own bundle filed in 2012 contained the transfer instrument, title certificate and a 2003 letter showing knowledge of the sale and transfer. Amendments are allowed only without undue delay and without affecting vested interests; the proposed Defendants have accrued vested interests under the Limitation of Actions Act, so the discretion cannot properly be exercised in the Plaintiff's favour.

p. 6
03

Whether the Plaintiff has locus standi to maintain the suit

Holding

The Plaintiff lacks locus standi - it is a separate and distinct legal entity from its de-registered predecessor, the Union of Kenya Civil Servants, which ceased to exist on 5th July 1983

Reasoning

The original Union of Kenya Civil Servants was deregistered and its registration cancelled on 5th July 1983, extinguishing it as a legal person. The current union was established only on 14th January 2002 and is a distinct body; by its establishment the suit property no longer belonged to it. Therefore it cannot maintain a suit over the property.

p. 7
04

Whether the suit discloses a reasonable cause of action

Holding

The suit is a collateral attack on an unimpeached consent order in Nairobi HCC No. 4799 of 1987, discloses no reasonable cause of action, and is an abuse of court process

Reasoning

The transfer of the suit property to the Defendants occurred pursuant to a consent order which has never been set aside, varied or rescinded. A party aggrieved by a decree must pursue execution or challenge the order within that case, not file a fresh suit. The suit therefore constitutes a collateral attack and abuse of process and is struck out.

p. 8

Legal principles established

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  • Abatement of a suit against a deceased party is automatic upon lapse of one year from death where no application for joinder of a legal representative is made; no formal order endorsing abatement is legally required
  • Substitution of a deceased party cannot be ordered where the suit has abated and no application for reinstatement of the abated suit is pending
  • A transaction founded on a valid court order which has not been set aside or varied cannot be held fraudulent by a court of coordinate jurisdiction; challenging it in a fresh suit is a collateral attack and an abuse of process
  • Questions arising between parties relating to the execution, discharge or satisfaction of a decree must be determined by the court executing the decree and not by a separate suit (Section 34, Civil Procedure Act)

Court orders

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  1. 1.The Plaintiff's Application dated the 8th July 2020 is dismissed
  2. 2.The 2nd Defendant's Application dated the 4th November 2020 is allowed
  3. 3.The Plaintiff's suit vide Plaint dated the 22nd August 2007, filed on the 28th August 2007, is struck out
  4. 4.The 2nd Defendant is awarded costs of the suit and of both applications, to be borne by the Plaintiff
  5. 5.The 4th, 5th and 6th Proposed Defendants, having not been joined, cannot benefit from an order of costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 24 Rule 3(2)
  • Limitation of Actions ActSection 7
  • Civil Procedure ActSection 34
  • Trade Unions Actnot specified (Chapter 23, Laws of Kenya)

Cases cited (5)

  • Said Sweilem Gheithan Saanum v Commissioner Of Lands (being sued through Attorney General) & 5 others
    [2015] eKLR
  • Central Bank Kenya Ltd v Trust Bank Kenya Ltd & 4 Others
    (2000) eKLR
  • Daykio Plantations Limited v National Bank of Kenya Limited & 2 others
    [2019] eKLR
  • Virnekas Mwanaharusi Nihazi v Bonifase Kahindi Katana & 2 Others
    (2019) eKLR
  • Wilson vs The Queen
    (1983) 2 S.C.R 594
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land dispute relating to LR No 201/674, Nature House, Tom Mboya Street, Nairobi)

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, "Union of Kenya Civil Servant v John Silas Nyamato & 2 others; Isaac Gathungu Wanjohi & 4 others (Proposed Interested Parties) [2021] KEELC 754 (KLR)", Case Analysis (2021). Nairobi HCC Case (Plaint dated 22nd August 2007; Applications dated 8th July 2020 and 4th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/754/eng@2021-11-11

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