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ELCOtherNot stated in judgment· [2022] KEELC 3703 (KLR)

Zebedee Mmata Injera v Benson Anubi Luhongo; Koanne C. K. Luhongo (Interested Party) (Environment & Land Case 27 of 2021) [2022] KEELC 3703 (KLR)

Environment and Land Court
12 July 2022
MMM. N. Mwanyale
987 words in judgment
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The bottom line

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A Kenyan land suit survived the defendant's death because the court allowed the plaintiff to continue the case against the interested party already joined.

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 Kapsabet (M. N. Mwanyale J) on a question the court raised suo moto on 25 May 2022: whether the suit could proceed against the interested party after the case against the deceased defendant was withdrawn and marked as abated on 15 December 2021. None of the parties filed submissions as invited. Relying on Order 24 rule 4 of the Civil Procedure Rules, the court held that the suit against the deceased defendant had abated and thus ceased to exist in law, citing Namweya J in Wallace Kinuthia v Anthony Ndung'u Muongi & 3 Others (2013) eKLR. The court then considered whether the plaintiff's case could effectively continue against the interested party alone, applying Gikonyo J's observation in Leonard Mutua Muteru (2014) eKLR that a suit cannot be effectively proceeded with against a non-principal party alone. On the pleadings, the interested party was the principal party: the deceased defendant had averred in his defence that the suit land, Nandi/Kapkangani/380, was bought and developed by his sister, the interested party. Because the interested party was already enjoined to the suit at the time of the withdrawal and abatement, the withdrawal did not affect the suit against her, and following Julius Musili Kyunga (2021) eKLR the parties could still ventilate their case on merit. The court answered the question affirmatively, allowed the plaintiff to proceed against the interested party, and made no orders as to costs since the issue was raised by the court itself.

Key legal issues

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Whether the plaintiff's suit can proceed against the interested party after the suit against the deceased defendant was withdrawn and marked abated

Holding

Yes. The suit against the deceased defendant ceased to exist in law upon abatement, but because the interested party was the principal party per the pleadings and had been enjoined before the withdrawal, the suit can proceed against her.

Reasoning

Order 24 rule 4(4) of the Civil Procedure Rules provides that where no application to substitute the legal representative of a deceased defendant is made within one year, the suit abates against the deceased defendant. Abatement means the suit against that defendant ceases to exist in law. However, the withdrawal and abatement affected only the deceased defendant. The pleadings showed the interested party was the principal party, as the deceased defendant averred the suit land was bought and developed by his sister, the interested party. She was already a party when the withdrawal was made, so the suit may effectively continue against her alone.

p. 3

Legal principles established

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  • The effect of a suit abating against a party is that it ceases to exist in law.
  • Where the interested party is the principal party and was already enjoined before abatement, the suit may proceed against the interested party notwithstanding abatement against the deceased defendant.

Court orders

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  1. 1.The Plaintiff may proceed with the suit against the Interested Party since the Interested Party had previously been enjoined
  2. 2.No orders as to costs, the issue having been raised suo moto by the Court

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 4(4)

Cases cited (3)

  • Wallace Kinuthia –vs- Anthony Ndung’u Muongi and 3 others
    (2013) eKLR
  • Leonard Mutua Muteru -vs- Benson Katela LE Kantai and Another
    (2014) eKLR
  • Julius Musili Kyunga -vs- Kenya Commercial Bank Ltd and Another. James Muriuki Karaya (Interested Party)
    (2021) eKLR
Jurisdiction invoked
Order 24 rule 4 of the Civil Procedure Rules; original civil jurisdiction of the Environment and Land Court

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, "Zebedee Mmata Injera v Benson Anubi Luhongo; Koanne C. K. Luhongo (Interested Party) (Environment & Land Case 27 of 2021) [2022] KEELC 3703 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3703/eng@2022-07-12

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