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ELCPartially AllowedNot stated in the judgment as extracted· [2022] KEELC 1246 (KLR)

Boniface Mutwiri Kungania v Japhet Kirimi M’rinkanya [2022] KEELC 1246 (KLR)

Environment and Land Court
23 February 2022
CNC.K. Nzili
2,331 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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If you consent to replacing a deceased party in a Kenyan land case, you generally cannot later claim the case collapsed when they died.

What this practically means

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Executive summary

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Two applications were before the Environment and Land Court at Meru: a notice of motion dated 28.10.2021 by the defendant's legal representative seeking a declaration that the suit had abated following the death of the original defendant, Gladys Kathuni M'Rinkanya, on 20.10.2019; and the plaintiff's application dated 17.11.2021 under Order 24 Rule 7(2) Civil Procedure Rules seeking revival of the suit. The suit was an adverse possession claim over L.R No. Abogeta/Upper-Chure/517 brought by originating summons dated 25.4.2019. The defendant's counsel knew of the death but did not disclose it, instead applying on 15.3.2021 to join the legal representative, which was allowed by consent on 13.7.2021, with consequential amendments, a reply to the amended originating summons and Order 11 compliance following. The court held that the defendant's application was res judicata of the earlier joinder application and that the defendant, having consented to the substitution and participated throughout, was estopped by silence and acquiescence from raising abatement; allowing the claim would sanction abuse of process. Once the court allowed the joinder by consent, the suit was deemed continued and revived, and no formal application for revival was required; sufficient cause for revival under Order 24 Rule 7(2) was shown, with no prejudice since the suit property remained preserved. The plaintiff's application was allowed and the abatement application disallowed, the disposition referencing Kishor Kumar Dhanji Varsani.

Key legal issues

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01

Whether the suit abated by operation of law one year after the defendant's death

Holding

The suit did not abate in the circumstances; the consent joinder of the legal representative revived and continued the suit

Reasoning

The court found the defendant's counsel knew of the death but withheld it from 11.12.2019 until filing the joinder application on 15.3.2021. By consenting to the joinder under Order 24 Rule 4 on 13.7.2021, the defendant willingly entered the suit, and the joinder order was neither set aside nor appealed. The court for good reason and sufficient cause extended and revived the suit, and no prejudice arose since the property was preserved.

p. 3
02

Whether the defendant is estopped from claiming abatement

Holding

Yes, the defendant is estopped by silence, acquiescence and consent from raising abatement

Reasoning

The defendant's lawyers participated in proceedings from 11.12.2019, sought the joinder of the legal representative themselves, obtained consent orders on 13.7.2021, filed a reply to the amended originating summons and complied with Order 11, only later claiming the suit had abated. The joinder application had already been allowed by consent, making the abatement application res judicata and the defendant estopped from alleging the suit was a nullity.

p. 3
03

Whether the plaintiff's application for revival under Order 24 Rule 7(2) was necessary and merited

Holding

No formal application for revival was required since the court had already revived the suit upon allowing the amendment

Reasoning

Once the defendant was joined and the amendment allowed, the plaintiff did not need to formally seek revival. However, the court noted the application of 28.11.2021 was unopposed and allowed it guided by Kishor Kumar Dhanji Varsani. The delay was explained by the defendant's own non-disclosure of the death and the Covid-19 scaling down of court operations, advancing substantive justice under Article 159.

p. 3

Legal principles established

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    Court orders

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    1. 1.The application dated 17.11.2021 seeking revival of the suit under Order 24 Rule 7(2) Civil Procedure Rules is allowed
    2. 2.The suit is deemed revived with effect from the consent of 13.7.2021 joining the current defendant
    3. 3.The application dated 28.10.2021 seeking a declaration that the suit abated is disallowed, the applicant being estopped and the application being res judicata

    Authorities

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    Legislation

    • Civil Procedure RulesOrder 24 Rule 3
    • Civil Procedure RulesOrder 24 Rule 4
    • Civil Procedure RulesOrder 24 Rule 7(2)
    • Civil Procedure RulesOrder 11
    • Civil Procedure RulesOrder 51 Rule 14(1) & (2)
    • Environment and Land Court ActSections 1A, 1B and 3
    • Constitution of KenyaArticle 159(2)(b) and 159(2)

    Cases cited (9)

    • Titus Kiragu –vs- Jackson Mugo Mathai
      [2015] eKLR
    • Sarah Gathoni Muiruri & Another –vs- Wanjiku Kiguru
      [2019] eKLR
    • Said Sweilem Gheithan Saanum –vs- Commissioner Of Lands & 5 Others
      [2015] eKLR
    • Macfoy –vs- United Africa Ltd
      (1961) 3 All F.R. 1169
    • Mbaya Nzulwa –vs- Kenya Power & Lighting Co. Ltd
      [2018] eKLR
    • Hass –vs- Wainaina
      [1982] eKLR
    • Rebecca Mijide Mungole & another –vs- Kenya Power & Lighting Company Ltd & 2 others
      [2017] eKLR
    • Dhanesvar V. Mehta –vs- Manila M Shah
      [1965] EA 321
    • Kishor Kumar Dhanji Varsani –vs- Amolak Singh & 4 others
      [2016] eKLR
    Jurisdiction invoked
    Environment and Land Court Act, Sections 1A, 1B and 3; Civil Procedure Rules Order 24 Rule 7(2)

    Key timeline

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    Practical implications

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    Frequently asked questions

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    Later judgments citing this (2)

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    Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

    Cite this brief

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    Cite this brief

    Caselaw, "Boniface Mutwiri Kungania v Japhet Kirimi M’rinkanya [2022] KEELC 1246 (KLR)", Case Analysis (2022). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1246/eng@2022-02-23

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