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ELCAllowed· [2022] KEELC 3589 (KLR)

Natasha Jobovna Mutai & Alexander Kiplagat Mutai (suing as Aministrators of the Estate of Job Kibiwott Mutai t/a Ludi Investments and Fudi Investments) & 3 others v Hebatulla Investment Limited & 5 others (In respect to the 1st and 2nd Applicant’s application dated 14th February, 2021 seeking to revive the 1st & 2nd Plaintiffs suit after abatement) (Environment and Land Case Civil Suit 1291 of 2013) [2022] KEELC 3589 (KLR)

Environment and Land Court
12 July 2022
MMM. D. Mwangi
2,937 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The 1st and 2nd Applicants, administrators of the estates of the 1st and 2nd Plaintiffs (Job Kibiwott Arap Mutai, who died intestate on April 26, 2016, and the 2nd Plaintiff, who died on July 20, 2020), moved the Court by Notice of Motion dated February 14, 2022 seeking enlargement of time, revival of the abated suit, and leave to substitute the deceased Plaintiffs with their legal representatives. They explained the delay by reference to the family's ignorance of the suit, the mental incapacity of the 1st Plaintiff's spouse from 2016 (confirmed in 2019), succession and guardianship proceedings, delays in obtaining chiefs' letters, lost gazettement receipts, and complex family negotiations with beneficiaries abroad. The 1st to 3rd Defendants opposed through a Preliminary Objection and grounds of objection, arguing they had transferred the suit property to third parties not joined to the suit, rendering it defective for non-joinder, and that the application was brought after inordinate delay. The 4th to 6th Defendants did not respond despite service. Framing two issues, the Court held that the Preliminary Objection was unsustainable because the alleged transfer was a point of fact requiring evidence, not a pure point of law, citing Mukisa Biscuits and Oraro v Mbaja. On the second issue, applying Order 24 of the Civil Procedure Rules and Rebecca Mijide Mungole, the Court found the suit had abated but that the Applicants' explanations for delay were sufficient cause. Allowing the application, the Court enlarged time, revived the suit, granted leave to substitute the estates' administrators, allowed amendment of the Plaint within 21 days, dismissed the Preliminary Objection, and ordered costs to be in the cause.

Key legal issues

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01

Whether the Defendants' Preliminary Objection was sustainable

Holding

Unsustainable; the objection was based on an allegation of transfer of the suit property to third parties, a fact requiring proof by evidence, not a pure point of law.

Reasoning

Relying on Mukisa Biscuits and Oraro v Mbaja, a preliminary objection must raise a pure point of law on assumed pleaded facts, not contested factual matters. The Defendants' claim that they transferred the suit property to third parties not joined to the suit requires evidence and cannot dispose of the suit as a preliminary point. The objection was accordingly dismissed.

p. 4
02

Whether the Applicants should be allowed to revive the abated suit and substitute the deceased Plaintiffs

Holding

Yes; the delay in seeking substitution was sufficiently explained by succession proceedings, mental incapacity of a spouse, and administrative delays, and there was no demonstrated prejudice.

Reasoning

Applying Order 24 of the Civil Procedure Rules as explained in Rebecca Mijide Mungole, the suit abated upon expiry of one year without substitution of the legal representatives. The court must first enlarge time, then revive the suit and join the legal representatives. The Applicants' explanations — cognitive decline of the 1st Plaintiff's spouse, delays in obtaining grants ad litem, chiefs' letters and lost gazettement receipts — were convincing and sufficient cause. Article 159 favoured hearing the Applicants on the merits.

Legal principles established

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  • A preliminary objection cannot rest on facts requiring proof by evidence.
  • A suit abates where no legal representative of a deceased plaintiff is substituted within one year, but time may be extended for good reason and the suit revived where sufficient cause is shown.
  • The court is enjoined to do substantive justice without undue regard to technicalities.

Court orders

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  1. 1.An order enlarging time within which the 1st and 2nd Plaintiffs' suit shall be revived.
  2. 2.An order reviving the 1st and 2nd Plaintiffs' suit.
  3. 3.Leave granted to substitute the 1st plaintiff with the 1st Applicants, the legal representatives and administrators of the 1st Plaintiff's Estate.
  4. 4.Leave granted to substitute the 2nd plaintiff with the 2nd Applicants, the legal representatives of the 2nd Plaintiff's Estate.
  5. 5.The Applicants and the 3rd and 4th Plaintiffs at liberty to amend the Plaint in view of the substitution within 21 days.
  6. 6.Costs of the application to be in the cause.
  7. 7.The Defendants' Preliminary Objection is dismissed.

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure RulesOrder 24 (rules 1, 3(1), 3(2), 7(1), 7(2))

Cases cited (5)

  • Mukisa Biscuits Manufacturing Ltd. -vs- West End Distributors Ltd.
    Civil Appeal No 9 of 1969 (1969) EA 696
  • Oraro -vs- Mbaja
    [2005] 1 KLR 141
  • Rebecca Mijide Mungole & another -vs- Kenya Power & Lighting Company Ltd & 2 others
    [2017] eKLR
  • Said Swailem Gheithan Saanum v Commissioner of Lands (sued through the Attorney General) & 5 Others
    Malindi Civil Appeal No 16 of 2015
  • Joseph Gachuhi Muthanji
Jurisdiction invoked
Original civil jurisdiction; Article 159 of the Constitution invoked; Order 24 of the Civil Procedure Rules

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, "Natasha Jobovna Mutai & Alexander Kiplagat Mutai (suing as Aministrators of the Estate of Job Kibiwott Mutai t/a Ludi Investments and Fudi Investments) & 3 others v Hebatulla Investment Limited & 5 others (In respect to the 1st and 2nd Applicant’s application dated 14th February, 2021 seeking to revive the 1st & 2nd Plaintiffs suit after abatement) (Environment and Land Case Civil Suit 1291 of 2013) [2022] KEELC 3589 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3589/eng@2022-07-12

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