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ELCDismissedNot stated in the judgment (Notice of Motion dated 29th April 2021)· [2022] KEELC 3105 (KLR)

Kamau & 4 others v Karima (Environment and Land Case Civil Suit 2952 of 1997) [2022] KEELC 3105 (KLR)

Environment and Land Court
22 June 2022
SOS. Okong'o
1,791 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 against a deceased defendant because the person the plaintiffs wanted to substitute had no letters of administration.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (S. Okong'o, J) on the Plaintiffs' Notice of Motion dated 29th April 2021. The suit had abated on 13th March 2019 after the deceased Defendant, who died in 2017, was not substituted within one year. The Applicants sought revival of the suit and substitution of the deceased's wife, Esther Njeri Njoroge, as Defendant, contending that the delay was caused by the beneficiaries' refusal to take out letters of administration, that she was cultivating and claiming beneficial ownership of the suit property, L.R No. Gatamaiyu/Kagwe/1227, and that she had claimed knowledge of how it was acquired. The application was anchored on Order 24 rules 4 and 7(2) and Order 50 rule 6 of the Civil Procedure Rules. The Respondent opposed, contending that no grant of letters of administration had issued to her - indeed the Applicants themselves had objected to the grant in Kiambu High Court Succession Cause No. 76 of 2020 - so she lacked legal capacity to be substituted, and that the Applicants had already filed a fresh suit at Githunguri. The court held that although the Applicants established sufficient cause for the delay, only a legal representative of a deceased defendant can be substituted, and the Respondent, holding no grant, was not one. Revival would therefore serve no purpose. The application was dismissed with costs to the Respondent on 22nd June 2022.

Key legal issues

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01

Legal capacity of a proposed substitute defendant

Holding

A person without a grant of letters of administration is not a legal representative and lacks capacity to be substituted for a deceased defendant, even if they have petitioned for a grant

Reasoning

Order 24 rule 4 requires the legal representative of a deceased defendant to be made a party. The Respondent had petitioned for a grant in the Kiambu High Court Succession Cause but no grant had issued; indeed, one of the Applicants had objected to its issuance. Being a petitioner without a grant does not confer legal representative status, so the Respondent could not be substituted.

p. 4
02

Sufficient cause for revival of an abated suit

Holding

The Applicants demonstrated sufficient cause for the delay - the beneficiaries' failure to take out a grant and their own diligent steps including filing a Citation - but the absence of a competent substitute party was fatal

Reasoning

The Applicants showed that the deceased died in 2017, no application for substitution was made within one year and the suit abated. They traced the delay to the beneficiaries' refusal or neglect to take out letters of administration, evidenced by a Citation and related proceedings. However, revival is pointless where the only proposed substitute lacks capacity.

p. 3

Legal principles established

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  • Only a legal representative of a deceased defendant can be made a party to a suit in place of the deceased defendant under Order 24 rule 4 of the Civil Procedure Rules
  • A suit will not be revived where there is no legal representative of the deceased against whom it can proceed

Court orders

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  1. 1.The Applicants' Notice of Motion dated 29th April 2021 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 4
  • Civil Procedure RulesOrder 24 rule 7(2)
  • Civil Procedure RulesOrder 50 rule 6

Cases cited (1)

  • Attorney General v Law Society of Kenya & another
    [2017] eKLR
Jurisdiction invoked
Not expressly stated; application brought under Order 24 rules 4 and 7(2) and Order 50 rule 6 of the Civil Procedure Rules

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, "Kamau & 4 others v Karima (Environment and Land Case Civil Suit 2952 of 1997) [2022] KEELC 3105 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 29th April 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3105/eng@2022-06-22

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