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ELCAllowedEnvironment & Land Case 18 of 2022· [2023] KEELC 20 (KLR)

Rono v Rono & 2 others (Environment & Land Case 18 of 2022) [2023] KEELC 20 (KLR)

Environment and Land Court
16 January 2023
MMM. N. Mwanyale
1,607 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court revived a lawsuit four years after it lapsed when the plaintiff died, showing courts will prioritise justice over strict deadlines.

What this practically means

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Executive summary

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Two notices of motion by Sarah Jepkemboi Kurui and Victor Kemei, administrators of the estate of the deceased plaintiff Obadiah Kirui, sought substitution of the deceased plaintiff, revival of the abated suit, and reinstatement of injunction orders preserving the suit premises. The applications were opposed by the 1st defendant, Jonathan Kipkemei Rono, who argued no suit existed after the plaintiff's death, that the second application duplicated the first and was an abuse of process, and that the applicants were guilty of inordinate delay. The court consolidated both applications and framed a single issue: whether the applicants were entitled to the reliefs sought. Applying Order 24 rules 3 and 7(2) of the Civil Procedure Rules, the court required enlargement of time and proof of sufficient cause for the delay. The substitution application filed on November 19, 2018 came 50 days after automatic abatement, while the enlargement application was filed approximately 4 years later, attributed to bank procedures restricting access to the deceased's funds and counsel's inadvertent mistake. Following the Court of Appeal decision in Joseph Kirui v Said K Keitany (2021) eKLR, where revival was allowed after 6½ years under Article 159, the court exercised its discretion in favour of the applicants, allowing revival and substitution so that substantive justice and the applicants' day in court would prevail. The court also reinstated the preservation orders earlier issued by Ombwayo J over parcels Nandi/Chepterit/855 and 856, noting the defendants' application to vacate them had been dismissed on December 2, 2022. Both applications were allowed as prayed, with 14 days for the plaintiff to amend the plaint and for the defendants to amend their defence. There were no orders as to costs.

Key legal issues

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01

Revival of an abated suit and substitution of a deceased plaintiff

Holding

The court allowed revival and substitution despite a delay of approximately 4 years, applying Article 159's overriding objective of substantive justice, following Joseph Kirui v Said K Keitany where revival was allowed after 6½ years.

Reasoning

Order 24 rule 3 requires substitution within one year of a plaintiff's death, failing which the suit abates, but rule 7(2) permits revival where sufficient cause is shown. The applicants explained the delay as stemming from bank procedures limiting access to the deceased's funds and counsel's inadvertent mistake. Guided by the Court of Appeal's approach in Joseph Kirui v Said K Keitany, which invoked Article 159 to allow revival after 6½ years, the court held the delay excusable and that substantive justice and the applicants' right to a hearing favoured revival.

p. 3
02

Reinstatement of interim injunctive orders preserving the suit properties

Holding

The court reinstated the preservation orders earlier issued by Ombwayo J over parcels Nandi/Chepterit/855 and 856 until determination of the suit.

Reasoning

The record showed that Ombwayo J had on December 14, 2018 ordered preservation of the suit properties. After abatement the defendants sought to vacate those orders, but that application was dismissed on December 2, 2022. The court found no reason to withhold reinstatement, noting the prior dismissal confirmed that interference would defeat the interest of justice, and adopted the same position preserving the properties against sale or transfer pending determination.

p. 4

Legal principles established

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  • The court has discretionary power under Order 24 rule 7(2) to revive a suit that has abated where sufficient cause for the delay is shown, and such discretion may be exercised in favour of substantive justice even after a long delay.

Court orders

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  1. 1.Both applications allowed as prayed
  2. 2.Suit revived and deceased plaintiff substituted with the applicants as legal representatives of the estate
  3. 3.Time enlarged for the substitution application
  4. 4.Suit properties Nandi/Chepterit/855 and Nandi/Chepterit/856 preserved; not to be sold and/or transferred until determination of the suit
  5. 5.Plaintiff given 14 days to amend, file and serve the plaint
  6. 6.Defendants granted 14 days after service to amend their defence
  7. 7.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 3
  • Civil Procedure RulesOrder 24 rule 7(2)
  • Constitution of KenyaArticle 159

Cases cited (1)

  • Joseph Kirui v Said K Keitany
    (2021) eKLR
Jurisdiction invoked
Discretionary powers under Order 24 rules 3 and 7(2) of the Civil Procedure Rules

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, "Rono v Rono & 2 others (Environment & Land Case 18 of 2022) [2023] KEELC 20 (KLR)", Case Analysis (2023). Environment & Land Case 18 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20/eng@2023-01-16

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