Daniel Mulwa Kavithi v Attorney General & 6 others [2022] KEELC 464 (KLR)
The bottom line
#A Kenyan court refused to reinstate a land suit that automatically died one year after the plaintiff's death, because no one applied to revive it.
What this practically means
#Executive summary
#Key legal issues
#Abatement of suit upon death of plaintiff and jurisdiction to reinstate without revival
The suit abated on 6th December 2016, one year after the plaintiff's death, by operation of Order 24 rule 3(2); the court has no power to reinstate a suit that has not been revived.
The plaintiff died on 6th December 2015. Under Order 24 rule 3(2) of the Civil Procedure Rules the suit automatically abated a year later. Relying on the Kenya Farmers Co-operative Union authority, the court held that substitution or reinstatement in an abated suit would be an exercise in futility and a grave error of jurisdiction, since the abated suit has ceased to exist and only revival can restore it. The applicant's motion did not seek revival.
Undue delay and laches in bringing the application
The application was brought after undue delay; the applicant failed to regularize his position through multiple mentions after obtaining the grant of letters of administration in 2017.
The applicant obtained grants of letters of administration intestate on 10th May 2017, but the matter was mentioned on 5th March 2018, 14th May 2018, 10th June 2019, 29th October 2019 and 12th March 2020 without him regularizing his position or substituting the deceased plaintiff. The court found the delay inordinate and held that no sufficient reason was advanced to warrant the exercise of discretion in his favour.
Legal principles established
#- A suit that has abated by operation of law under Order 24 rule 3(2) ceases to exist; a court has no jurisdiction to reinstate or order substitution in such a suit without an application for revival, and the objection may be raised at any time.
Court orders
#- 1.The notice of motion dated 22nd September 2020 is dismissed with no orders as to costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 17 Rule 1, Order 24 Rules 1 and 3 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Mulwa Kavithi v Attorney General & 6 others [2022] KEELC 464 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/464/eng@2022-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.