Alexander Anthony Wahiu & 2 others v Joseph Kariha Wahiu & another [2022] KEELC 592 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that withdrawn or abated suits legally cease to exist, allowing a stay order built on such 'ghost' cases to be reviewed and set aside.
What this practically means
#Executive summary
#Key legal issues
#Whether the two prior High Court suits were still legally in existence
Both suits had long abated following the death of Eunice Wamboi Kariha on 28th December 2014 and the absence of any substitution within 12 months, and were therefore legally non-existent.
Upon a party's death, heirs were obliged to take out a grant and apply for substitution within 12 months where the cause of action survives. No grant or substitution application was made in respect of either suit by the time of the impugned ruling. Abatement operates by force of law with passage of time, so the suits ceased to exist regardless of any formal order recording abatement.
Whether the Notices of Withdrawal took effect upon filing without court endorsement
The Notices of Withdrawal took effect upon their filing and lodging with the court; court endorsement is merely administrative and its absence does not revive a withdrawn suit.
Under Order 25 Rules 1 and 2 of the Civil Procedure Rules, a plaintiff may discontinue by notice before the suit is set down for hearing; leave is only required where a suit has been set down. No evidence showed either suit was set down, and by the date of the second notice the defendant was already dead. The originating party was at liberty to withdraw and cannot be compelled to resuscitate the suits.
Whether there is an error or mistake apparent on the face of the record justifying review
Yes - the ruling of 9th August 2021 was premised on the existence of two suits that were in fact non-existent, an error conspicuous and amenable to review.
The learned judge who crafted the impugned ruling suo motto stayed the suit on the belief that the two prior High Court matters were pending. Since those suits had abated and been withdrawn, the foundation of the ruling was factually mistaken. The error is discernible without long-drawn legal argument, satisfying the test in National Bank of Kenya v Ndungu Njau, and hence merits review.
Legal principles established
#- Where no application is made for substitution of a deceased party within one year of death, the suit abates and ceases to exist in the eye of the law.
- A plaintiff may withdraw a suit by notice without leave of the court before judgment; court endorsement of the notice is an administrative formality whose absence does not revive the suit.
- A party's right to withdraw a matter before the court cannot be taken away; the court may only deal with costs.
- Review may be granted to correct an apparent error or omission on the part of the court that is self-evident and requires no elaborate argument.
Court orders
#- 1.The Notice of Motion application dated 25th October 2021 is allowed.
- 2.The orders of the court made on 9th August 2021 (staying the suit pending hearing and determination of Nairobi HCC No. 43 of 2010 (OS) and Nairobi High Court Miscellaneous Civil Application No. 10 of 2006, and maintaining status quo) are reviewed and set aside.
- 3.The parties shall be at liberty to choose whether the matter shall be referred to Hon. Lady Justice K Bor, Judge, who heard and concluded the hearing, for purposes of crafting the requisite judgment, with directions to be given upon delivery of the ruling.
- 4.Costs shall abide the outcome of the case.
- Jurisdiction invoked
- Review jurisdiction over its own orders (Order 45 of the Civil Procedure Rules; error apparent on the face of the record) in a suit before the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alexander Anthony Wahiu & 2 others v Joseph Kariha Wahiu & another [2022] KEELC 592 (KLR)", Case Analysis (2022). Civil Case No. 239 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/592/eng@2022-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.