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ELCStruck OutEnvironment & Land Case 85 of 2002· [2022] KEELC 14791 (KLR)

Wekesa & 6 others v Juma & another

Environment and Land Court
17 November 2022
1,946 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a bid to replace a deceased plaintiff because the family waited too long and filed the wrong paperwork.

What this practically means

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Executive summary

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By a notice of motion dated March 6, 2022, an applicant sought leave to substitute the 4th plaintiff, Wilson Wanyama Kwanusu, who died on July 17, 2011 while this land suit was pending, relying on a limited grant ad litem issued in Bungoma Chief Magistrate's Court Succession Cause No 25 of 2022. The application was opposed on the grounds that it was incompetent under Order 24 rule 3(2) of the Civil Procedure Rules and that the applicant was guilty of laches and inordinate delay. The court first held that the citation of section 3A of the Civil Procedure Act and Order 51 rule 1, rather than Order 24 rule 3, was a curable technicality under Article 159(2)(d) of the Constitution and Order 51 rule 10(2). However, the court found the supporting affidavit fatally defective: it was sworn by Geoffrey Nyongesa Wanyama, a stranger, while the notice of motion named Godfrey Mukhebi Wangila as applicant, leaving the application unsupported by evidence. The court declined to amend the motion suo motu under section 100 of the Civil Procedure Act because of a more fundamental obstacle: the 4th plaintiff's suit had abated by operation of law on July 18, 2012, one year after his death, since no substitution application was made within the year. Following the Court of Appeal in Rebecca Mijide Mungole, the court held that time must first be extended and the suit revived before a legal representative can be joined, and no such application was before it. The notice of motion was struck out with costs.

Key legal issues

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01

Effect of abatement under Order 24 rule 3(2)

Holding

The deceased 4th plaintiff's suit abated by operation of law on July 18, 2012, one year after his death, and there is no suit in which substitution can occur absent an application to revive or extend time

Reasoning

Order 24 rule 3(2) requires substitution within one year of a plaintiff's death, failing which the suit abates. The proviso allows extension of time for good reason, but the sequence must be followed: time must first be extended, then the legal representative may apply to be joined. No such application was before the court, so substitution was impossible.

p. 4
02

Defective supporting affidavit sworn by a stranger

Holding

The application had no supporting affidavit because the deponent, Geoffrey Nyongesa Wanyama, was not the named applicant, Godfrey Mukhebi Wangila

Reasoning

An affidavit is evidence. The notice of motion named Godfrey Mukhebi Wangila as applicant, but the supporting and supplementary affidavits were sworn by Geoffrey Nyongesa Wanyama, a stranger. The primary pleading was never corrected, so there was no evidence supporting the application, rendering it fatally defective.

p. 2
03

Citing the wrong legal provision

Holding

The wrong citation of the legal basis (section 3A and Order 51 rule 1 instead of Order 24 rule 3) was a curable technicality that caused no prejudice

Reasoning

Article 159(2)(d) of the Constitution requires justice to be administered without undue regard to procedural technicalities, and Order 51 rule 10(2) provides that no application shall be defeated on a technicality not affecting substance. The respondents themselves invoked the correct provision in their grounds of opposition and suffered no prejudice.

p. 2

Legal principles established

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  • Where a plaintiff dies and no substitution application is made within one year, the suit abates and no application for joinder can be made before time is extended
  • An affidavit is evidence; an application supported by an affidavit of a stranger who is not the applicant has no supporting evidence

Court orders

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  1. 1.The notice of motion dated March 6, 2022 is struck out with costs
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules (application under Order 24 rule 3)

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, "Wekesa & 6 others v Juma & another", Case Analysis (2022). Environment & Land Case 85 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14791/eng@2022-11-17

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