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ELCDismissedNot stated on the face of the ruling· [2023] KEELC 68 (KLR)

Nyachae & 3 others v Nyabera & 4 others (Environment & Land Case 1216 of 2016) [2023] KEELC 68 (KLR)

Environment and Land Court
19 January 2023
MSMunyao Sila
1,769 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a repeat request to substitute a deceased party, ruling that once a court allows substitution, filing it again is barred as res judicata.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Kisii, delivered by Munyao Sila J on 19 January 2023, determined an application dated 30 September 2022 brought under Order 24 rule 3(2) and Order 4 rules (1) and (2) of the Civil Procedure Rules, 2010, seeking the substitution of George Mokaya for the deceased 4th defendant to the counterclaim, John Joseph Mokaya, who died on 7 October 2014. The applicant produced a grant ad litem. The plaintiffs opposed via grounds of opposition, arguing the application was belated and required extension of time; the 2nd defendant, Eagle and Bison Limited, opposed on grounds of res judicata and delay, though its counsel conceded the application could be allowed on terms limiting the substituted party to filings based on the existing record. The court held the application was res judicata: an earlier substitution application by the same applicant, dated 26 March 2019, had been allowed by Mutungi J on 30 April 2019, reviving the abated suit and permitting substitution. Noting that the record showed no amendment to reflect that substitution and that subsequent proceedings were tainted by want of service on the substituted party (his then advocates' proprietor having died), the court nonetheless restricted the ruling to the substitution issue and reserved the service question for directions. The application was dismissed with costs to the plaintiffs; costs were not awarded to the 2nd defendant in light of its concession.

Key legal issues

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01

Whether the substitution application dated 30 September 2022 is res judicata

Holding

The application is res judicata because the same applicant's earlier substitution application dated 26 March 2019 was allowed by Mutungi J on 30 April 2019

Reasoning

The court found on the record that an earlier application for substitution of the same deceased 4th defendant by the same applicant had been allowed on 30 April 2019, with the court exercising its discretion to revive the abated suit. Having been allowed, that application could not be re-litigated; the remedy, if any, was enforcement of the existing order, not a fresh application.

p. 4
02

Effect of the earlier substitution order on subsequent proceedings

Holding

Proceedings conducted after the 30 April 2019 substitution are tainted for want of service of the applicant, but that issue was reserved for directions, the ruling being restricted to substitution

Reasoning

The record showed no amendment reflecting the substitution and no service on M/s Josiah Abobo & Company Advocates, whose proprietor was deceased, on the substituted party. The court flagged this as a defect affecting subsequent proceedings but declined to determine it, reserving it for directions after delivery of the ruling.

p. 4

Legal principles established

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  • Once an application for substitution has been allowed, the same applicant cannot bring a second substitution application, which is res judicata.

Court orders

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  1. 1.The application dated 30 September 2022 is dismissed
  2. 2.Costs of the application to the plaintiffs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 24 rule 3(2)
  • Civil Procedure Rules, 2010Order 4 rules (1) and (2)
  • Civil Procedure Rules, 2010Order 24 rule 4(3)
Jurisdiction invoked
Order 24 rule 3(2) and Order 4 rules (1) and (2) of the Civil Procedure Rules, 2010

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, "Nyachae & 3 others v Nyabera & 4 others (Environment & Land Case 1216 of 2016) [2023] KEELC 68 (KLR)", Case Analysis (2023). Not stated on the face of the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/68/eng@2023-01-19

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