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ELCDismissedNotice of Motion dated 3rd March 2020 (Judicial Review application)· [2021] KEELC 793 (KLR)

Nicodemus Momanyi v Onchiri Kegeni & another [2021] KEELC 793 (KLR)

High Court of Kenya
23 November 2021
JOJ. M. Onyango
1,720 words in judgment
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The bottom line

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A Kisii court refused to revive a suit filed five years after the respondent's death, warning that ignorance of the law and inaction are no excuse.

What this practically means

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Executive summary

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This ruling of the High Court at Kisii (J.M. Onyango, J) determined a Notice of Motion dated 3rd March 2020 in which the Applicant, a judgment creditor who had successfully quashed by judicial review an order of the Chief Magistrate's court adopting a Land Disputes Tribunal award, sought extension of time to substitute the deceased Respondent with his legal representative, Lawrence Mose, and to revive the abated suit. The Respondent had died on 18th July 2015, and under Order 24 rule 3(2) of the Civil Procedure Rules the suit abated one year after death absent an application for substitution. The Objector opposed the application as defective, res judicata, time-barred and an abuse of process, noting the five-year delay. The Applicant blamed his former advocate for misleading him into filing a prior application before seeking extension of time. The court framed one issue: whether the Applicant had given sufficient reasons to warrant extension of time. Holding that the Applicant was all along represented by counsel, that ignorance of the law is no defence, and that the Applicant had been indolent - taking no steps between 2014 and 2019 and attempting to execute against the Objector without verifying whether he held a grant - the court found insufficient cause to exercise its discretion. Equity assists the vigilant, not the indolent. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Applicant gave sufficient reasons to warrant extension of time to seek substitution after the suit had abated

Holding

The application was dismissed; a 5-year delay despite representation by counsel and full awareness of the death was inexcusable

Reasoning

The Respondent died on 18th July 2015 and the application was filed in March 2020, some five years later. Under Order 24 rule 3(2), substitution ought to have been sought within one year, extendable for good reason. The Applicant, though represented by counsel, claimed ignorance of the abatement rule, which the court rejected as ignorance of the law is no defence. The Applicant also failed to diligently pursue his costs, doing nothing between 2014 and 2019 and attempting execution against the Objector without ascertaining whether he held a grant.

p. 3

Legal principles established

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  • Where no application for substitution is made within one year of a party's death, the suit abates, but the court may for good reason extend time on application
  • Ignorance of the law does not excuse delay in seeking extension of time
  • Equity aids the diligent, not the indolent litigant

Court orders

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  1. 1.The Notice of Motion dated 3rd March 2020 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 (rules 1, 3(1), 3(2), 7)
  • Civil Procedure Act
Jurisdiction invoked
Order 24 rule 3(2) proviso of the Civil Procedure Rules (discretion to extend time for good reason)

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, "Nicodemus Momanyi v Onchiri Kegeni & another [2021] KEELC 793 (KLR)", Case Analysis (2021). Notice of Motion dated 3rd March 2020 (Judicial Review application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/793/eng@2021-11-23

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