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ELCPartially Allowed· [2022] KEELC 1605 (KLR)

Samuel Njung’e Kariuki v Francis Muturi Muniu [2022] KEELC 1605 (KLR)

Environment and Land Court
10 February 2022
LKL. Komingoi
1,717 words in judgment
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The bottom line

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Kenya's Environment and Land Court revived a land suit that had abated after the defendant died, because his family blocked substitution and hid the grant.

What this practically means

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Executive summary

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This was a Notice of Motion dated 30th August 2021 brought by the plaintiff under Section 3A of the Civil Procedure Act and Order 24 Rules 2, 4, 5 and 7 of the Civil Procedure Rules, seeking review and setting aside of an order that his adverse possession suit had abated, extension of time to seek substitution of the deceased defendant Francis Muturi Muniu with his personal representatives, substitution, and reinstatement of a consent order of 11th April 2011. The plaintiff deponed that the suit had been fully heard and was awaiting judgment when the defendant died on 10th October 2019; that the defendant's advocates and beneficiaries frustrated substitution, forcing him to file citation proceedings; and that he later discovered the proposed respondents had secretly obtained a grant at Kiambu High Court in May 2021 and were distributing the suit land and encroaching on it on the basis that the suit had abated. The respondents opposed, arguing the suit abated in October 2020 through the plaintiff's inaction and that he was engaged in multiple litigation over the same subject. The court framed two issues: whether the abatement order of 7th June 2021 should be reviewed or set aside, and costs. Applying Order 24 rule 7(2) and the 'sufficient cause' standard from Kishor Kumar Dhanji Varsani, the court held the suit automatically abated on 10th October 2020 but that the plaintiff had demonstrated sufficient cause, as the deceased's legal representatives were unwilling to be substituted. The application was allowed in full, though costs were awarded against the plaintiff. Judgment delivered virtually at Nairobi on 10th February 2022 by L. Komingoi, J.

Key legal issues

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Whether the order marking the suit as abated should be reviewed and set aside and the suit revived

Holding

The court held that although the suit automatically abated on 10th October 2020, the plaintiff demonstrated sufficient cause because the deceased's legal representatives were unwilling to be substituted and had concealed the grant they had obtained

Reasoning

The court traced the chronology: the suit was concluded in October 2018 and was pending judgment when the defendant died on 10th October 2019. The plaintiff's advocates made inquiries about substitution, filed citation proceedings in September 2020 when the beneficiaries declined appointment, and later discovered the proposed respondents had secretly obtained a grant at Kiambu High Court in May 2021 while including the suit land in the estate for distribution. This established sufficient cause under Order 24 rule 7(2) to revive the abated suit.

p. 3

Legal principles established

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  • A suit abates twelve months after the death of a sole defendant if no application for substitution is filed within that period
  • An abated suit may be revived where the applicant proves sufficient cause for failing to continue the suit

Court orders

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  1. 1.The orders issued by the court on 11th June 2021 marking the suit as abated are reviewed and/or set aside and the suit is revived
  2. 2.The deceased defendant Francis Muturi Muniu is substituted with his legal representatives Victor Kibinu Muturi and Jedidah Njeri Kabuthia
  3. 3.The consent order granted on 11th April 2011 is reinstated
  4. 4.Costs of the application to be borne by the Plaintiff/Applicant

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 24 Rules 2, 4, 5, 7
  • Constitution of KenyaNot specified

Cases cited (2)

  • Kishor Kumar Dhanji Varsani vs Amolak Singh & 4 Others
    [2016] eKLR
  • Honourable Attorney General vs Law Society of Kenya & Another
    Civil Application No 133 of 2011
Jurisdiction invoked
Section 3A of the Civil Procedure Act; Order 24 Rules 2, 4, 5 and 7 of the Civil Procedure Rules; Constitution of Kenya

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, "Samuel Njung’e Kariuki v Francis Muturi Muniu [2022] KEELC 1605 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1605/eng@2022-02-10

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