Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 11 of 2019· [2022] KEELC 15271 (KLR)

Salome Kainda M'Rintara v M'ndegwa Ncokera

Environment and Land Court
7 December 2022
CNC.K. Nzili
1,136 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The plaintiff in a land suit applied on October 3, 2022 under Order 24 Rules 4, 5 and 7(2) of the Civil Procedure Rules, the Law of Succession Act and Article 50(1) of the Constitution to revive her suit against the deceased defendant, extend time for substitution, and have Gladys Gaitenga M'Chokera and Henry Kiogora M'Chokera apply for letters of administration or a limited grant ad litem, or be nominated as representatives of the estate. The defendant's death was reported to the court on February 28, 2022; counsel was given time to substitute but the family could not agree on an administrator. The application was unopposed. The court found no burial permit or death certificate proving the death, and held that it lacked jurisdiction to handle probate disputes or compel parties to take out grants, that power resting with the probate court. Applying the Lillian 'S' jurisdiction principle and the revival jurisprudence requiring candid and plausible explanation and sufficient cause, the court held that although the delay was not inordinate, the plaintiff had failed to move in the right direction under Order 24 Rule 7, having taken no steps to cite the relatives or invoke the Public Trustee. The application was dismissed with no orders as to costs, and the suit was marked as withdrawn under Order 25 of the Civil Procedure Rules, also with no orders as to costs.

Key legal issues

#
01

Jurisdiction of the ELC over probate matters

Holding

The ELC cannot handle probate disputes or compel persons to take out grants; that power belongs to the probate court

Reasoning

The plaintiff asked the court to order the proposed parties to apply for letters of administration or a limited grant ad litem. The court held that probate jurisdiction is vested exclusively in the probate court under the Law of Succession Act and Probate and Administration Rules, and citing the Lillian 'S' principle, declined jurisdiction.

p. 2
02

Revival of an abated suit and substitution of a deceased defendant

Holding

Revival requires sufficient cause, a candid and plausible explanation, and potential parties with capacity; the plaintiff failed to meet this threshold

Reasoning

The plaintiff produced no burial permit or death certificate, took no steps to cite the relatives or invoke the Public Trustee, and instead sat back waiting for her case to abate. Although the delay was not inordinate, she had not fit within Order 24 Rule 7, so the application was dismissed.

p. 3

Legal principles established

#
  • Jurisdiction is everything; a court without it must down its tools
  • An abated suit can only be revived where there are potential parties with capacity to take up the brief and sufficient cause is shown
  • Revival of an abated suit requires a candid and plausible explanation for not pursuing the suit before it abated

Court orders

#
  1. 1.The application dated October 3, 2022 is dismissed with no orders as to costs
  2. 2.The suit is marked as withdrawn under Order 25 of the Civil Procedure Rules with no orders as to costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 24 Rules 4, 5 & 7(2)
  • Civil Procedure RulesOrder 25
  • Law of Succession ActRules 14, 5th Schedule
  • Constitution of KenyaArticle 50(1)
  • Registration of Births and Deaths Act
  • Civil Procedure ActSections 1A & 1B

Cases cited (7)

  • Owners of Motor Vessel Lillian 'S' v Caltex Oil (Kenya) Ltd
    [1989] KLR 1

    Jurisdiction is everything; without it a court downs its tools

  • Titus Kiragu vs Mugo Mathai
    (2015) eKLR

    Sufficient cause required to revive an abated suit

  • Charles Mugunda vs AG and another
    (2015) eKLR

    Sufficient cause required to revive an abated suit

  • AG vs LSK & another
    (2013) eKLR

    Sufficient cause required to revive an abated suit

  • Kishor Kumar Dhanji Varsani vs Amolak Singh & 4 others
    (2016) eKLR

    Revival of abated suit requires candid and plausible explanation for not pursuing it

  • Said Sweilem Gheitham Saanum vs Commissioner of lands (sued through AG & 5 others
    (2015) eKLR

    Delay and disagreement over grants; justice shall not be delayed is a constitutional principle

  • Timoi Farmers & Estate Ltd vs Kipngeno Arap Ngeny & another
    (2022) eKLR

    Explanation for revival must be candid, plausible and excusable; inordinate delay fatal

Jurisdiction invoked
Environment and Land Court jurisdiction; application under Order 24 Rules 4, 5 & 7(2) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Salome Kainda M'Rintara v M'ndegwa Ncokera", Case Analysis (2022). Environment & Land Case 11 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15271/eng@2022-12-07

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