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ELCDismissedKerugoya ELC 363 of 2013 (formerly Embu High Court CC 120 of 2008)· [2021] KEELC 4065 (KLR)

Cosmas Kanja Mbuteti (Deceased) & another v Jackson Murage & 3 others [2021] KEELC 4065 (KLR)

Environment and Land Court
5 March 2021
2,087 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By a Notice of Motion dated 2nd March 2020, the 2nd Plaintiff, an octogenarian who with her late husband had sued the Defendants in 2008 for adverse possession of L.R. INOI/NDIMI/86, sought to revive her suit against the deceased 3rd Defendant, to extend time for his substitution, and to substitute Beatrice Njoki, holder of letters of administration ad litem, as his legal representative. The 3rd Defendant died on 13th February 2014; no substitution application was made within the one-year period prescribed by Order 24 Rule 4(3), and the suit abated by operation of law. The Plaintiff blamed her former advocates' failure to apply for substitution, and, after discharging them on 2nd October 2018, procured the grant ad litem through a citation in Succession Cause No. 383 of 2019. The Defendants opposed, citing inordinate delay. The court analysed Order 24 Rule 4 and the reviving discretion in Order 24 Rule 7(2), adopting authority that sufficient cause must be rational, convincing and leave no unexplained gaps. It found the four-year delay after the Plaintiff chose to act in person unjustifiable and not attributable to advocate negligence; the family's delay in obtaining letters of administration explained only part of the delay, distinguishing Geoffrey Mwangi Kihara. The application was dismissed. However, exercising its discretion on costs under Order 24 Rule 2(3) and guided by Bushasha Lucheri, the court ordered each party to bear its own costs, given the family's contribution to the delay. Judgment delivered at Kerugoya on 5th March 2021 by E.C. Cherono, ELC Judge.

Key legal issues

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01

Whether sufficient cause was shown to extend time and revive the abated suit

Holding

No — the plaintiff's delay of four years after dismissing her advocates was inexcusable and could not be attributed to advocate negligence

Reasoning

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.

p. 3
02

Effect of failure to substitute within one year

Holding

The suit abated as against the deceased 3rd Defendant by operation of law under Order 24 Rule 4(3)

Reasoning

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.

p. 2
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Costs of an abated suit

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 24 Rule 4
  • Civil Procedure Rules, 2010Order 24 Rule 7(2)
  • Civil Procedure Rules, 2010Order 24 Rule 2(3)

Cases cited (8)

  • Lucy Bosire v Kehancha Div. Land Dispute Tribunal & 2 Others
    (2013) e K.L.R
  • Charles Wanjohi Wathuku Vs Githinji Ngure & Another
    Civil Application No.9 of 2016
  • Titus Kiragu Vs Jackson Mugo Mathai
    (2015) e K.L.R
  • Rukwaro Waweru Vs Kinyutho Ritho & Another
    (2015) e K.L.R
  • Charles Mugunda Gacheru Vs Attorney General & Another
    (2015) e K.L.R
  • The Hon. Attorney General Vs the Law Society of Kenya & Another
    Civil Appeal (Application) No. 133 of 2011
  • Geoffrey Mwangi Kihara Vs Mwihoko Housing Company Ltd & 3 others
    [2015] e K.L.R
  • Bushasha Lucheri Vs Joseph Langat Sitienei & Another
    [2012] e K.L.R
Jurisdiction invoked
Order 24 Rule 7(2) of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.