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ELCPartially AllowedNot stated in the judgment as extracted· [2023] KEELC 909 (KLR)

Gatuma v Gatuma & 2 others (Environment and Land Miscellaneous Application 21 of 2022) [2023] KEELC 909 (KLR)

Environment and Land Court
21 February 2023
1,321 words in judgment
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The bottom line

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A Nairobi court revived a 15-year-old land case, allowing a plaintiff to substitute a deceased defendant with his estate's administrators and pursue Kshs 27 million in compensation.

What this practically means

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Executive summary

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The Plaintiff, George Gitau Gatuma, moved the Environment and Land Court by a Notice of Motion dated December 2, 2022, brought under Orders 24 and 50 of the Civil Procedure Rules, seeking enlargement of time to substitute the deceased Defendant, Augostino Mbai (who died on October 29, 2008), revival of the abated suit, injunctive and preservation orders over Kshs 27,475,439.80 held by the National Land Commission and Cooperative Bank of Kenya as compensation for the compulsory acquisition of 0.0702 hectares of land parcel Dagoretti/Uthiru/281 for the Nairobi Expressway, and disclosure of compensation documents. The Plaintiff explained the delay by the pendency of Court of Appeal Civil Appeal Number 188 of 2005 lodged by the deceased, and the family's long delay in obtaining a grant, the Respondents eventually being confirmed as administrators. The 1st Respondent opposed, asserting the suit had abated for over 15 years, that he received compensation only for structures he developed, and that the issues were pending in High Court Succession No 1698 of 2009, urging consolidation instead. The court, in view of Justice Thande's ruling that the succession court lacked jurisdiction over title to land, allowed prayers 2, 3 and 4: time was enlarged, the deceased Defendant was to be substituted with the administrators John Mukuri Mbai, Michael Kariuki Mbai and Nancy Njoki Ng'onda, and the Plaintiff was to amend the Plaint within 14 days. Prayers 5 to 9 were deferred pending joinder of the National Land Commission as an Interested Party under Order 1 rule 10(2), with the matter set for mention on March 15, 2023 and reasons reserved.

Key legal issues

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01

Whether to enlarge time, substitute the deceased Defendant and revive the abated suit

Holding

The court allowed prayers 2, 3 and 4, granting leave to substitute the deceased Defendant with the administrators of his estate and directing amendment of the Plaint.

Reasoning

The Plaintiff explained the delay by reference to the pending appeal in Court of Appeal Civil Appeal Number 188 of 2005 and the long absence of administrators of the deceased's estate. The succession court had directed him to the Environment and Land Court on jurisdiction, and the Respondents had listed the suit property among the deceased's estate assets, warranting substitution and revival so the land claim could be determined.

p. 3
02

Whether injunctive and preservation orders over compensation monies could issue before the National Land Commission was a party

Holding

Prayers 5 to 9 were deferred because the NLC, an indispensable party to those prayers, was not joined; the court ordered its joinder as an Interested Party under Order 1 rule 10(2).

Reasoning

The orders sought would bind the National Land Commission and the Cooperative Bank regarding compensation for compulsory acquisition of part of Dagoretti/Uthiru/281. Since the NLC was not a party, the court directed its joinder as an Interested Party and deferred hearing those prayers until after amendment of the Plaint and joinder, with reasons to follow.

p. 4
03

Whether the suit should be consolidated with the succession cause

Holding

No consolidation order was made; the court proceeded with substitution and revival, in view of the succession court's direction that it lacked jurisdiction over title to land.

Reasoning

The 1st Respondent argued the abated suit and the succession cause involved the same parties and subject matter and should be consolidated. The court instead noted the succession court's ruling advising the Applicant to seek justice in the Environment and Land Court, and allowed substitution and revival rather than consolidation.

p. 3

Legal principles established

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  • Where a sole defendant dies and the suit abates, the court may enlarge time, allow substitution of the deceased with the administrators of his estate and revive the suit

Court orders

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  1. 1.The court allows prayers No 2, 3 & 4 of the application
  2. 2.The Plaintiff is granted leave to substitute the Defendant with the administrators of his estate, namely, John Mukuri Mbai, Michael Kariuki Mbai & Nancy Njoki Ng'onda
  3. 3.The Plaintiff shall amend his Plaint within 14 days from the date of the ruling and serve the amended Plaint upon the substituted Defendants within the same timeline
  4. 4.Under Order 1 rule 10(2) of the Civil Procedure Rules, the Plaintiff is ordered to join the National Land Commission as an Interested Party in the suit and the application
  5. 5.Prayers No 5, 6, 7, 8 & 9 shall be heard after the amendment of the Plaint and the joinder of the National Land Commission as an Interested Party
  6. 6.The matter to be mentioned on March 15, 2023 to confirm compliance and directions on the hearing of prayers No 5, 6, 7, 8 & 9
  7. 7.The Court will give its reasons for the orders issued together with its ruling on prayers No 5, 6, 7, 8 & 9 of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 24
  • Civil Procedure RulesOrder 50
  • Civil Procedure RulesOrder 1 rule 10(2)

Cases cited (3)

  • Court of Appeal Civil Appeal Number 188 of 2005
  • CMCC ELC E318 of 2022
  • High Court Succession No 1698 of 2009 (In the Matter of the Estate of Mbai Gatuma - Deceased)
Jurisdiction invoked
Order 24 and Order 50 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, "Gatuma v Gatuma & 2 others (Environment and Land Miscellaneous Application 21 of 2022) [2023] KEELC 909 (KLR)", Case Analysis (2023). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/909/eng@2023-02-21

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