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ELCPartially AllowedNot stated in the excerpt· [2022] KEELC 3023 (KLR)

Awuonda v Muia & 6 others (Environment & Land Case 200 of 2015) [2022] KEELC 3023 (KLR)

High Court of Kenya
20 June 2022
COChristine Ochieng
1,309 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 confirmed that if you don't replace a deceased party in a lawsuit within one year, your case against them automatically dies.

What this practically means

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Executive summary

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The Defendants filed a Notice of Motion dated 9th August 2021 under Order 17 Rule 2(3), Order 24 Rule 4(3) and Order 51 Rule 1 of the Civil Procedure Rules and Section 51(i) of the Civil Procedure Act, seeking dismissal of the suit for want of prosecution, a declaration that the suit against the deceased 1st and 7th Defendants had abated for want of substitution within one year of their deaths, removal of the Plaintiff's caution on LR Donyo Sabuk/Komarock Block 1/20114, and costs. The application was supported by the affidavit of Benjamin Irungu Mwangi, trustee of the 6th Defendant, who argued there had been no activity since 2000. The Plaintiff opposed, explaining that delays flowed from the deaths of the 1st and 7th Defendants, difficulties tracing family members, and the Covid-19 pandemic, and that he had filed a citation in Machakos High Court Succession Cause No. E014 of 2021 to enable substitution. The court framed a single issue: whether the suit had abated against the 1st and 7th Defendants. Applying Order 24 Rule 4(3), whose terms it found mandatory, and the authority in Muriithi Ngwenya v Gikonyo Macharia Mwangi, the court held that abatement had occurred because substitution was not effected within one year, and that the pending citation could not cure this. Only prayer 2 was allowed; dismissal for want of prosecution, removal of the caution and the costs prayer were declined. Costs were ordered to be in the cause.

Key legal issues

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01

Whether the suit abated against the 1st and 7th Defendants for want of substitution within one year of their deaths

Holding

The suit abated against the 1st and 7th Defendants as they were not substituted within one year of death; the suit subsists against the remaining Defendants.

Reasoning

Order 24 Rule 4(3) requires an application for substitution within one year of a defendant's death, failing which the suit abates against the deceased defendant. The court records confirmed no substitution occurred within one year. The pendency of a citation in a succession cause in the Chief Magistrate's/High Court did not excuse compliance, as the rule is mandatory. The court associated itself with the cited authorities holding that a court has no jurisdiction to order substitution once a suit has abated.

p. 3
02

Whether the suit should be dismissed for want of prosecution and the caution on the suit land removed

Holding

Declined; the suit survives against the remaining Defendants.

Reasoning

Having found abatement only against the deceased Defendants, the court held the claim against the surviving Defendants subsists and allowed only prayer 2 of the motion, declining dismissal for want of prosecution, removal of the caution and the costs prayer.

p. 3

Legal principles established

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  • Where no application to substitute the legal representative of a deceased defendant is made within one year, the suit abates as against that deceased defendant by operation of law, and the provisions are mandatory.

Court orders

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  1. 1.Prayer No. 2 of the Notice of Motion allowed - the suit against the 1st and 7th Defendants marked as abated
  2. 2.The remaining prayers (dismissal for want of prosecution, removal of caution, costs of the application) declined
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(3)
  • Civil Procedure RulesOrder 24 Rule 4(3)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSection 51(i)

Cases cited (3)

  • Rebecca Muinde Mungole & Another v Kenya Power & Lighting Company Ltd & 2 Others
    Civil Appeal No. 283 of 2015; (2017) eKLR
  • Kenya Farmers Cooperative Union Ltd v Charles Murgor (deceased) t/a Kiptabei Coffee Estate
    (2006) eKLR; also cited as (2005) eKLR
  • Muriithi Ngwenya v Gikonyo Macharia Mwangi & 2 others
    [2018] eKLR
Jurisdiction invoked
Order 17 Rule 2(3), Order 24 Rule 4(3) and Order 51 Rule 1 of the Civil Procedure Rules and Section 51(i) of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Awuonda v Muia & 6 others (Environment & Land Case 200 of 2015) [2022] KEELC 3023 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3023/eng@2022-06-20

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