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ELCOtherNot stated in the ruling (suit challenging Meru CMC ELC No. 37 of 2014)· [2021] KEELC 4447 (KLR)

John Mutuma M’Ikiao v Isaya M’kirera M’kiambati & another [2021] KEELC 4447 (KLR)

Environment and Land Court
10 February 2021
LMLucy N. Mbugua
672 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan land case cannot continue against a deceased defendant until their legal representative is substituted, though some evidence may be preserved in the meantime.

What this practically means

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Executive summary

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This is an interlocutory ruling by Hon. Lucy N. Mbugua, ELC Judge, Meru, delivered on 10 February 2021 in a suit filed on 5.2.2020 in which the plaintiff challenges the commencement and prosecution of Meru CMC ELC No. 37 of 2014 and seeks cancellation of the name of Isaya M'Kirera M'Kiambati on parcel Abothuguchi/Katheri/1195, to be replaced with the plaintiff's name. The 1st defendant entered appearance, filed a defence, counter-claim and an application dated 16.11.2020 seeking permanent injunctive orders and, inter alia, that his evidence be heard de benesse. By the time the matter came before the court on 19.1.2021, the 2nd defendant, Daniel Kiunga M'Kiambati, was dead. Counsel for the 1st defendant urged the court to proceed without substitution, noting the unopposed application and that the suit land is registered in the 1st defendant's name; plaintiff's counsel opposed, alleging fraud against both defendants and asking that no steps be taken before substitution, save that status quo be maintained. The court held that the order allowing the 1st defendant's evidence de benesse, made by Judge Njoroge on 2.12.2020, had not been reviewed and would stand. However, it rejected the submission that the suit could proceed without substituting the deceased 2nd defendant, reasoning that litigants cannot be directed whom to sue, and noting the checkered history of at least four related suits. The court ordered the evidence de benesse to proceed, put the remaining prayers in abeyance pending substitution, and directed that status quo be maintained. The ruling was delivered electronically under COVID-19 practice directions, with deemed waiver of Order 21 rule 1.

Key legal issues

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01

Effect of an interlocutory order allowing evidence de benesse

Holding

Once the court (Judge Njoroge) allowed the taking of evidence de benesse and no review has been sought, the court must proceed on that footing

Reasoning

The court found that prayer 3 of the application dated 16.11.2020 had been allowed by Judge Njoroge on 2.12.2020. Since no review of that order had been sought, this court could not revisit it and was bound to take the 1st defendant's evidence de benesse.

p. 1
02

Whether a suit may continue against a deceased defendant without substitution

Holding

No - substitution must be effected before further steps, though evidence de benesse may proceed

Reasoning

The court rejected counsel's submission that the matter should proceed without substitution. Given the checkered litigation history involving multiple suits and the deceased 2nd defendant's involvement, fairness required that substitution be addressed first, with other prayers put on hold and status quo maintained.

p. 1

Legal principles established

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  • Substitution of a deceased party must be effected before further steps are taken in the suit

Court orders

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  1. 1.The evidence of 1st defendant shall be heard de benesse
  2. 2.The prosecution of the other prayers in the application dated 16.11.2020 are put on hold until substitution of 2nd defendant is done or until further orders are given by the court
  3. 3.Status quo to be maintained
  4. 4.Compliance with order 21 rule 1 of the Civil Procedure Rules (pronouncement in open court) waived; Ruling delivered by electronic mail per COVID-19 practice directions
Jurisdiction invoked
Not stated in the ruling (Environment and Land Court, Meru, seized of the plaint filed 5.2.2020)

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, "John Mutuma M’Ikiao v Isaya M’kirera M’kiambati & another [2021] KEELC 4447 (KLR)", Case Analysis (2021). Not stated in the ruling (suit challenging Meru CMC ELC No. 37 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4447/eng@2021-02-10

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