Cosmas Kanja Mbuteti (Deceased) & another v Jackson Murage & 3 others [2021] KEELC 4065 (KLR)
The bottom line
#A Kenyan court refused to revive a land case against a defendant who died six years earlier, because the plaintiff waited too long to replace him.
What this practically means
#Executive summary
#Key legal issues
#Whether sufficient cause was shown to extend time and revive the abated suit
No — the plaintiff's delay of four years after dismissing her advocates was inexcusable and could not be attributed to advocate negligence
The application was filed six years after the 3rd Defendant's death, well beyond the one-year window in Order 24 Rule 4(3). The excuse of advocate negligence failed because the plaintiff chose to act in person only four years later, and could have engaged another diligent advocate. The delay by the deceased's family to take out letters of administration explained only part of the delay, insufficient to justify the court's discretionary revival power.
Effect of failure to substitute within one year
The suit abated as against the deceased 3rd Defendant by operation of law under Order 24 Rule 4(3)
Order 24 Rule 4 requires an application for joinder of the deceased defendant's legal representative within one year of death; failing that, the suit abates. Death occurred on 13th February 2014, so the deadline was 13th February 2015; no application was made until 2nd March 2020, hence abatement occurred automatically.
Costs of an abated suit
The court has discretion under Order 24 Rule 2(3); given partial delay by the deceased's family, each party was to bear its own costs
Although defendants sought costs, the court noted 'may' confers discretion and costs of abated suits should be awarded sparingly. Since part of the delay was occasioned by those entitled to take out letters of administration, justice favoured each party bearing its own costs.
Legal principles established
#- A suit abates by operation of law, not by the court's declaration, where no substitution application is made within one year of a defendant's death
- Sufficient cause to revive an abated suit must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps
Court orders
#- 1.The Notice of Motion dated 2nd March 2020 seeking to revive the suit against the 3rd Defendant, extend time for substitution and substitute Beatrice Njoki as legal representative is dismissed
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Order 24 Rule 7(2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joseph Lendrix Waswa v Republic[2020] KESC 23 (KLR)4 Sept 2020followed
- Simon Njuguna Kago v Pan Africa Life Assurance Limited [2018] KEELRC 1039 (KLR)[2018] KEELRC 1039 (KLR)26 Sept 2018
- Pamela Wangui Kiama v County Public Service Board of Nyandarua & 2 others [2014] KEELRC 1368 (KLR)[2014] KEELRC 1368 (KLR)24 Oct 2014
Cite this brief
#Cite this brief
Caselaw, "Cosmas Kanja Mbuteti (Deceased) & another v Jackson Murage & 3 others [2021] KEELC 4065 (KLR)", Case Analysis (2021). Kerugoya ELC 363 of 2013 (formerly Embu High Court CC 120 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4065/eng@2021-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.