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ELCDismissed· [2021] KEELC 1230 (KLR)

Bilha Njeri Gachanja v Mwangi Kahara & another [2021] KEELC 1230 (KLR)

High Court of Kenya
21 October 2021
1,052 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court threw out a family's bid to continue a dead relative's lawsuit because they waited too long to formally take over the case.

What this practically means

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Executive summary

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This was a notice of motion dated 6th July 2020 seeking to enlarge time for substitution of a deceased plaintiff and to substitute Paul Kinuthia Gachanja, the administrator of her estate, as her legal representative. The application was supported by the applicant's affidavits and opposed by the 1st defendant/respondent, Julius Mwangi Kahara, through a replying affidavit. By consent, the motion was canvassed by written submissions. The sole issue was whether time for substitution should be extended. The court found it undisputed that the plaintiff died on 5th March 2016 and was not substituted within one year, so the suit abated under Order 24 rule 3(2) of the Civil Procedure Rules. The applicant obtained a limited grant on 2nd June 2017 - itself beyond the one-year period, as he admitted in his further affidavit - but took no steps until new advocates filed a notice of change on 22nd March 2018. The court held the applicant had failed to demonstrate sufficient cause and that the application was brought after inordinate delay. Applying the Court of Appeal's guidance in Rebecca Mijide Mungole on negligence and inaction, and H. P. G. Waweru J's holding in Kenya Farmers Cooperative Union that an abated suit ceases to exist and the court has no jurisdiction to hear it, the court found no merit in the application. The motion was dismissed with no orders as to costs, and it was so ordered on 21st October 2021 in Nairobi.

Key legal issues

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01

Whether time for substitution of the deceased plaintiff should be extended under Order 24 rule 3(2)

Holding

The application was dismissed; the applicant failed to demonstrate sufficient cause and the delay was inordinate

Reasoning

The plaintiff died on 5th March 2016 and was not substituted within one year, so the suit abated under Order 24 rule 3(2). The applicant obtained letters of administration on 2nd June 2017 but did nothing until instructing new advocates on 22nd March 2018. His own further affidavit admitted the grant was issued beyond the one-year period, showing deliberate inaction. The court, guided by the Rebecca Mijide Mungole and Kenya Farmers Cooperative Union authorities, held there was no sufficient cause to extend time or revive the suit.

p. 2

Legal principles established

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  • A suit that has abated ceases to exist and the court lacks jurisdiction to order substitution or conduct trial in it except on an application to revive
  • Where delay is attributable to negligence, inaction or lack of bona fides, the court will not revive an abated suit

Court orders

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  1. 1.The Notice of Motion dated 6th July 2020 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 3(2)
  • Civil Procedure RulesOrder 24 rule 7(2)

Cases cited (2)

  • Rebecca Mijide Mungole & Another vs Kenya Power & Lighting Co. Ltd & 2 Others
    [2017] eKLR
  • Kenya Farmers Cooperative Union Ltd vs Charles Murgor t/a Kaptabei Coffee Estate
    [2005] eKLR
Jurisdiction invoked
Order 24 rules 3(2) and 7(2) of the Civil Procedure Rules

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, "Bilha Njeri Gachanja v Mwangi Kahara & another [2021] KEELC 1230 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1230/eng@2021-10-21

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