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ELCDismissedELC Application dated 24th February 2022 (in ELC NO. 441 OF 2003)· [2022] KEELC 451 (KLR)

Njoroge Makumi v Esther Muthoni Kibe (sued as the Legal Representative of the Estate of Mwarangu Makumi, Deceased) [2022] KEELC 451 (KLR)

Environment and Land Court
25 March 2022
OMOguttu Mboya
2,422 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court cannot revive a land suit against a defendant who died years earlier and was never replaced by their estate — the suit is legally dead.

What this practically means

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Executive summary

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The Plaintiff, Njoroge Makumi, moved the court by Notice of Motion dated 24th February 2022 (intertwined with a further application dated 31st January 2022) seeking reinstatement of ELC NO. 441 OF 2003, which had been dismissed on 29th October 2018 after abatement, setting aside/review of the dismissal order, extension of time, and a temporary injunction restraining the defendant from burying the remains of Jane Wanjiku Mwarangu on L.R Komothai/Thuita/352 and its subdivisions. The plaintiff claimed the deceased's husband had held the suit property in trust for him and that the property had been illegally subdivided. The court noted that the original defendant died on 31st May 2012 and was never substituted; counsel for the plaintiff conceded this, and also that the deceased whose burial was to be enjoined had already been buried, rendering the injunction futile. Framing a single issue - whether the court can revive a suit dismissed on the basis of abatement where there has been no substitution - the court held that abatement extinguishes the suit in law, that substitution is required within twelve months of death, and that although Order 24 Rule 7(2) provides a discretionary window, no sufficient cause or due diligence was shown. Relying on Said Sweilem v Commissioner of Lands and Macfoy v United Africa Co., the court found an application to revive a suit against a long-deceased, unsubstituted defendant to be a nullity ab initio. Both applications were dismissed, with no orders as to costs since there was no estate against which costs could be awarded.

Key legal issues

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01

Whether the court can revive a suit dismissed for abatement where the deceased defendant was never substituted

Holding

The application for reinstatement is a nullity ab initio because there is no defendant against whom the suit can be revived; the suit, having abated, ceased to exist and cannot be resuscitated.

Reasoning

The defendant died on 31st May 2012 and was never substituted within the 12-month window under Order 24. Although Order 24 Rule 7(2) provides a window for application, its exercise requires due diligence and sufficient cause, none of which was established. Reinstating a suit against no one would be an order operating in vacuum, an act in futility which the court cannot undertake.

p. 4
02

Whether abatement requires a formal court order to take effect

Holding

Abatement takes place by operation of law, but for convenience an order of the court recording it is necessary for final and effectual disposal of the suit.

Reasoning

Relying on Said Sweilem Gheithan Saanum v Commissioner of Lands, the court noted abatement flows automatically from the omission to implead a legal representative within one year, but the fact of abatement must be brought to the court's notice, proved and recorded to enable consequential steps such as costs.

p. 3

Legal principles established

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  • A suit that has abated ceases to exist in the eyes of the law, and reinstatement against a deceased, unsubstituted party cannot be granted
  • An act which is void is a nullity and incurably bad; proceedings founded on it are equally bad

Court orders

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  1. 1.The Application dated 24th February 2022 and the Application dated 31st January 2022 are dismissed for lack of merit
  2. 2.There shall be no orders as to costs

Authorities

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Legislation

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

Cases cited (4)

  • Said Sweilem Gheithan Saanum v Commissioner Of Lands (being sued through Attorney General) & 5 others
    [2015] eKLR
  • M'mboroki M'arangacha v Land Adjudication Officer, Nyambene and 2 others
    Meru H.C.C. Application No.45 of 1997
  • KFC Union v Charles Murgor (Deceased)
    NBI HCCC No.1671 of 1994
  • Macfoy v United Africa Co. Limited
    [1961] 3 All E.R. 1169
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the applicable statutes; application brought under Order 24 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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Cite this brief

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Cite this brief

Caselaw, "Njoroge Makumi v Esther Muthoni Kibe (sued as the Legal Representative of the Estate of Mwarangu Makumi, Deceased) [2022] KEELC 451 (KLR)", Case Analysis (2022). ELC Application dated 24th February 2022 (in ELC NO. 441 OF 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/451/eng@2022-03-25

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