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ELCStruck OutOriginating Summons dated October 2, 2015 (Nakuru)· [2023] KEELC 550 (KLR)

Mathew Johnston Muburi & 2 others v First Credit Exchange Development Limited (suing as administrators of the estate of Teresa Kirangari Muburi, deceased)

Environment and Land Court
2 February 2023
2,115 words in judgment
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The bottom line

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A Kenyan court struck out a family's attempt to revive their late mother's land case because they skipped a required procedural step.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (L. A. Omollo, J) determined a notice of motion dated September 12, 2022 brought by the administrators of the estate of Teresa Kirangari Muburi, the deceased plaintiff in an originating summons filed on October 2, 2015 seeking a declaration of ownership of property IR 37496/1 and discharge of a charge. The applicants sought revival of the suit and their substitution as plaintiffs in place of the deceased, who died on July 2, 2019. The application was unopposed, no response having been filed. The court framed two issues: whether the suit should be revived, and whether the deceased plaintiff should be substituted with the administrators. Applying Order 24 rule 3 of the Civil Procedure Rules and the Court of Appeal's decision in Rebecca Mijide Mungole v Kenya Power & Lighting Company Ltd, the court held that the suit had abated because no substitution application was made within one year of death, and that under the mandatory sequence in Order 24, time had first to be extended before the legal representative could be joined and the suit revived. Since the applicant had not sought extension of time, the application was incompetent and was struck out with no order as to costs, with liberty to file a fresh application following the proper procedure.

Key legal issues

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Whether the abated suit could be revived and the deceased plaintiff substituted without prior extension of time

Holding

The application was incompetent because the suit had abated after the one-year period lapsed and no application for extension of time had been made; joinder and revival could not be sought before time was extended

Reasoning

The plaintiff died on July 2, 2019. No substitution application was made within one year, so the suit abated. Relying on Order 24 rule 3(2) and the Court of Appeal decision in Rebecca Mijide Mungole, the court held that the sequence in Order 24 must be followed: time must first be extended, then the legal representative joined, then revival sought. The applicant skipped the extension-of-time step, rendering the application incompetent.

p. 5

Legal principles established

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  • Where a sole plaintiff dies and no application for joinder of the legal representative is made within one year, the suit abates; time must first be extended before the legal representative can be joined and the suit revived

Court orders

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  1. 1.The application dated September 12, 2022 is struck out with no order as to costs
  2. 2.The applicant is at liberty to institute a fresh application bearing in mind the proper procedure

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 24 rules 1, 3(2), 7(2)
  • Civil Procedure Actsections 1A, 1B, 3A

Cases cited (5)

  • Timothy Limo & 2 others v Joel Kinyanjui Muchiri (suing as the legal representative of the late Jacob Muchiri Kinyanjui)
    [2020] eKLR
  • Rukwaro Waweru v Kinyutho Ritho & another
    [2015] eKLR
  • Said Sweilem Gheithan Saannum v Commissioner of Lands & 5 others
    [2015] eKLR
  • Mathenge Ngatia Ngari (suing for himself and on behalf of his deceased brothers represented by their wives) v Christopher Wangombe Ngatia & another
    [2020] eKLR
  • Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others
    [2017] eKLR
Jurisdiction invoked
Order 24 rules 1, 3(2) and 7(2) of the Civil Procedure Rules, 2010 and sections 1A, 1B and 3A of the Civil Procedure Act

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, "Mathew Johnston Muburi & 2 others v First Credit Exchange Development Limited (suing as administrators of the estate of Teresa Kirangari Muburi, deceased)", Case Analysis (2023). Originating Summons dated October 2, 2015 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/550/eng@2023-02-02

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