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ELCDismissedNot stated in the extract (two Notices of Motion dated 10th November 2021 and 11th November 2021)· [2022] KEELC 713 (KLR)

Mohamed Bwana Bwanaadi & another v Rishad Abdulrehman Khator & 10 others [2022] KEELC 713 (KLR)

Environment and Land Court
22 March 2022
NMN.A. Matheka
2,288 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 suit that had automatically lapsed after a defendant's death, because the family waited nearly two years to act.

What this practically means

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Executive summary

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Two applications, dated 10th and 11th November 2021, were brought under Order 23 rule 7(2) of the Civil Procedure Rules, 2010 by Abdul Hamid Mohidin, who had on 9th November 2021 been appointed legal representative of the estate of Amina Ahmed Salim in Mombasa CM Succession Misc. Application No. E041 of 2021. He sought to be joined in place of the deceased 5th defendant, leave to file a defence, revival of the suit against the 3rd, 4th and 5th defendants which had abated on or about 30th November 2020, and issuance of summons to the legal representative of the deceased defendant. The applicant explained that family meetings and succession proceedings delayed the identification of a suitable representative. The respondent opposed, pointing out that the suit was commenced in 1996 and is part-heard; that the deceased defendants never filed a defence despite being represented by counsel; that the suit had already abated once before and was revived on 6th November 2017; and that the fresh applications were filed almost two years after the second abatement without explaining the 4th defendant's death or the whereabouts of Fatuma Yusuf, previously appointed. Matheka J set out the framework of Order 24 rule 4 and the Court of Appeal's three-stage analysis of abatement and revival, holding that revival requires sufficient cause. Finding the delay inordinate and inexcusable, the reasons rejected, and noting that allowing a defence after 25 years in a part-heard matter would be unfair, the court held the applications frivolous and an abuse of process, dismissed them with costs, and so ordered on 22nd March 2022 at Mombasa.

Key legal issues

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01

Whether the abated suit should be revived and the deceased 5th defendant's legal representative joined

Holding

The applications were dismissed because the delay was inordinate, inexcusable and unexplained, and because permitting a defence after 25 years in a part-heard matter would be unfair

Reasoning

Order 24 rule 4 provides for substitution of a deceased defendant's legal representative on application, but abatement occurs after one year without such application. Revival requires sufficient cause. Here the 5th defendant died on 1st December 2019 and the suit abated on 30th November 2020, yet the applications were filed in November 2021. The court found the explanation inadequate, noted the suit had abated once before and been revived in 2017, and held that litigation must come to an end; joining the applicant would derail a part-heard case. The applications were frivolous and an abuse of process.

p. 3
02

The legal framework governing death of a defendant and abatement

Holding

Order 24 rule 4(1) and (3) empowers the court to cause a deceased defendant's legal representative to be made a party, but the suit abates if no application is made within one year

Reasoning

The court cited Order 24 rule 4 of the Civil Procedure Rules and the Court of Appeal's exposition in Said Sweilem Gheithan Saanum, which identifies three stages: joinder of the legal representative on application within time; abatement after one year, after which no fresh suit may be brought; and revival on satisfaction of sufficient cause. Abatement operates by force of the passage of time, not by court declaration.

p. 2

Legal principles established

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  • An abated suit is non-existent prior to revival, and revival requires a proper application with justification for the delay
  • A suit abates by operation of law one year after a defendant's death if no application is made, not by any declaration of the court

Court orders

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  1. 1.The two applications (dated 10th November 2021 and 11th November 2021) are dismissed
  2. 2.Costs of the applications to the respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 23 rule 7(2)
  • Civil Procedure Rules, 2010Order 24 rule 4(1) and (3)
  • Civil Procedure ActSection 2 (definition of legal representative)

Cases cited (4)

  • Said Sweilem Gheithan Saanum vs Commissioner of Lands (being sued through the Attorney General) & 5 Others
    (2015) eKLR
  • Titus Kiragu vs Jackson Mugo Mathai
    (2015) eKLR
  • Charles Mugunda Gacheru vs Attorney General & Another
    (2015) eKLR
  • Rukwaro Waweru vs. Kinyutho Ritho & Another
    (2015) eKLR
Jurisdiction invoked
Order 23 rule 7(2) and 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, "Mohamed Bwana Bwanaadi & another v Rishad Abdulrehman Khator & 10 others [2022] KEELC 713 (KLR)", Case Analysis (2022). Not stated in the extract (two Notices of Motion dated 10th November 2021 and 11th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/713/eng@2022-03-22

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