Gichuru v M’murithi & 2 others (Environment & Land Case 54 of 2015) [2022] KEELC 3538 (KLR)

The bottom line

When a defendant in a Kenyan land case dies, their legal representative can replace them in the suit, but you must apply within one year.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court, delivered by Hon. C.K. Nzili, ELC Judge, on 27 July 2022 via Microsoft Teams/Open Court, determined an application dated 20 August 2020 seeking leave to substitute the 2nd defendant, who had died on 14 June 2020, with his son Wilson Mwirigi Manyara. The proposed substitute held a limited grant of letters of administration ad litem, granted on 17 August 2020, and supported the application with an affidavit attaching the death certificate and the limited grant. The court was not informed of any dispute over the death or the grant. Applying Order 24 Rule 4 of the Civil Procedure Rules, the court observed that where a defendant dies and the cause of action survives, the court shall, on application, cause the legal representative of the deceased defendant to be made a party and proceed with the suit. Sub-rule (3) requires such an application to be made within one year, failing which the suit abates against that defendant. The court found the application had been made within the stipulated timelines and therefore held that it had merit. The application was allowed with no orders as to costs. The ruling was delivered in the presence of court attendant Kananu and Mr. Mukaburu for the defendant.

Key legal issues

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Substitution of a deceased defendant

Holding

The application for substitution was merited as it complied with Order 24 Rule 4 and was filed within the one-year limitation period.

Reasoning

The court noted the 2nd defendant died on 14.6.2020 and a limited grant ad litem was obtained on 17.8.2020 by his son, Wilson Mwirigi Manyara. Order 24 Rule 4 permits joinder of the deceased's legal representative where the cause of action survives, and sub-rule (3) requires the application within one year. The application was within time, so it was allowed.

p. 1

Legal principles established

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Where a defendant dies and the cause of action survives, the court shall cause the legal representative of the deceased defendant to be made a party and proceed with the suit, provided the application is made within one year.

Court orders

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1.Leave granted for substitution of the deceased 2nd defendant with Wilson Mwirigi Manyara, holder of a limited grant of letters of administration ad litem
2.No orders as to costs

Authorities

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Legislation

Civil Procedure RulesOrder 24 Rule 4 (including sub-rule (3))

Key timeline

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Practical implications

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Frequently asked questions

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Related briefs

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Cite this brief

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Cite this brief

Caselaw, "Gichuru v M’murithi & 2 others (Environment & Land Case 54 of 2015) [2022] KEELC 3538 (KLR)", Case Analysis (2022). Not stated in judgment (application dated 20.8.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3538/eng@2022-07-27

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