Judith Wahu Gachukia (Suing as the Administratix of the Estate of the late George Gachuka Muhungi) v Monica Waruguru Gachukia [2021] KEELC 3084 (KLR)
The bottom line
#A Kenyan court ruled that a land suit automatically died when the sole plaintiff was not replaced within one year of her death, and her temporary injunction had long expired.
What this practically means
#Executive summary
#Key legal issues
#Abatement of suit on death of sole plaintiff
The suit abated by operation of Order 24 Rule 3(2) one year after the plaintiff's death in September 2017, as no substitution was effected within that period or since
The plaintiff died in September 2017 and counsel was granted time to substitute her. On 19th March 2018 Mukunya J granted a final 21 days for substitution, warning that failure would result in dismissal. No substitution was ever effected. By September 2018, one year after death, the suit abated by operation of law under Order 24 Rule 3(2), and remained unsubstituted some four years later.
Lapse of temporary injunction under Order 42 Rule 6
The temporary injunction granted on 1st November 2011 lapsed on 1st November 2012 because the suit was not determined within twelve months and the order was never extended; there is consequently no live order to vacate
Order 42 Rule 6 provides that an interlocutory injunction lapses if the suit is not determined within twelve months unless the court orders otherwise for sufficient reason. The injunction granted by Muchelule J was never extended and the suit was never heard. Applying the definition of 'lapse' in Black's Law Dictionary, the order was terminated by law, making the prayer to vacate it superfluous.
Costs against the estate of the deceased plaintiff
Although Order 24 Rule 3(2) permits the court to award a defendant costs from the deceased plaintiff's estate, the court declined to do so because the dispute is between family members and settlement had been encouraged
Order 24 Rule 3(2) empowers the court, on the defendant's application, to award costs of defending the suit recoverable from the deceased plaintiff's estate. Here the record showed that Mukunya J had in 2016 observed it was a family dispute capable of settlement and had given the parties time to settle out of court. In those circumstances the court exercised its discretion to make no order as to costs.
Legal principles established
#- An interlocutory injunction lapses automatically by operation of law if the suit is not determined within twelve months of the grant, unless the court orders otherwise for sufficient reason
- Where a sole plaintiff dies and no application for substitution of a legal representative is made within one year, the suit abates so far as the deceased plaintiff is concerned
- A lapsed order cannot be vacated because nothing exists to set aside
Court orders
#- 1.The plaintiff's suit is marked as having abated under Order 24 Rule 3(2) of the Civil Procedure Rules
- 2.The Notice of Motion dated 9th March 2019 is allowed
- 3.No orders as to costs (the parties are family)
- Jurisdiction invoked
- Order 24 Rule 3 and Order 42 Rule 6 of the Civil Procedure Rules (inherent case-management jurisdiction over a first-instance land suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judith Wahu Gachukia (Suing as the Administratix of the Estate of the late George Gachuka Muhungi) v Monica Waruguru Gachukia [2021] KEELC 3084 (KLR)", Case Analysis (2021). Not stated in the judgment (Bungoma ELCase in respect of land parcels BUNGOMA/KIMININI/1156, 1155, 1154, 1153 and 1152). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3084/eng@2021-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.