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ELCStruck OutEnvironment & Land Case 698 of 2015 (Formerly Civil Suit No. 110 of 2020 (OS))· [2023] KEELC 15830 (KLR)

Wambaya (in his own behalf and on behalf of the Estate of Esperance Perside Wambaya) v Awuor & 3 others

Environment and Land Court
2 March 2023
EAE. Asati
1,077 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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If you don't apply to substitute a deceased party within one year in Kenya, your suit dies and only a revival application can save it.

What this practically means

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Executive summary

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The plaintiff, Jacob Joseph Wambaya, moved the Court by Notice of Motion dated 26th July 2021 seeking substitution of the deceased 2nd defendant, Roda Jebiama Karan, with James Kosgei, her legal representative under Letters of Administration Ad Litem granted in Succession Cause (Citation) No. 13 of 2019, Kisumu CM's Court, and amendment of the cause title accordingly. Kosgei opposed through a preliminary objection contending that the application contravened Order 24 Rule 4(3) of the Civil Procedure Rules, having been lodged close to three years after the grant of letters ad litem, and that the suit against the deceased 2nd defendant had abated, leaving no subsisting suit in which substitution could occur. The parties filed written submissions; the plaintiff argued the objection was res judicata given an earlier order by Ombwayo J, while Kosgei relied on Mukisa Biscuit and Kenya Farmers Cooperative Union v Murgor. The Court held that Order 24 Rule 4(3) is mandatory: substitution must be sought within one year of the defendant's death, failing which the suit abates and becomes non-existent unless revived on application showing sufficient cause. The 2nd defendant died in 2018 and the application, filed 11 April 2022, was beyond one year. No revival application existed and the earlier order did not revive the suit. The Court upheld the preliminary objection, struck out the application dated 26th July 2021, and awarded costs to the intended 2nd defendant, James Kosgei.

Key legal issues

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01

Effect of failure to apply for substitution within one year of the defendant's death

Holding

The suit against the deceased 2nd defendant abated; substitution could not be ordered in an abated suit absent revival.

Reasoning

Order 24 Rule 4(1) empowers substitution of a deceased defendant's legal representative, but subrule (3) mandates application within one year of death, failing which the suit abates. The 2nd defendant died in 2018 and the application, filed 11 April 2022, was beyond one year. No revival application existed; the earlier order by Ombwayo J did not revive the suit. Substitution would therefore be futile and the preliminary objection upheld.

p. 2
02

Revival of an abated suit

Holding

Revival under subrule 7(2) requires an application by a party proving sufficient cause for not continuing the suit; none was made here.

Reasoning

Although Order 24 provides for revival of an abated suit, the court noted there was no revival application on record. The applicant relied on an order by Ombwayo J allowing filing of the substitution application, but the court found no order reviving the suit. Without revival, the suit was non-existent as against the 2nd defendant and could not sustain substitution.

p. 2

Legal principles established

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  • Order 24 Rule 4(3) is mandatory; if no application for substitution is made within one year of the defendant's death, the suit abates, and no orders can be made in an abated suit unless it is revived on application showing sufficient cause.

Court orders

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  1. 1.Preliminary objection upheld
  2. 2.Application dated 26th July 2021 struck out
  3. 3.Costs to the intended 2nd defendant, James Kosgei

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 24 Rule 4(1)
  • Civil Procedure Rules, 2010Order 24 Rule 4(3)
  • Civil Procedure Rules, 2010Order 24 Rule 7(2)

Cases cited (2)

  • Mukisa Biscuit Manufacturing Co. v West End Distributors Ltd
    [1969] EA 696
  • Kenya Farmers Cooperative Union Ltd v Charles Murgor (deceased) t/a Kiptabei Coffee Estate
    [2005] eKLR

    Suit against deceased defendant abates where substitution was not done before abatement; court lacks jurisdiction to order substitution in an abated suit.

Jurisdiction invoked
Order 24 Rule 4 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, "Wambaya (in his own behalf and on behalf of the Estate of Esperance Perside Wambaya) v Awuor & 3 others", Case Analysis (2023). Environment & Land Case 698 of 2015 (Formerly Civil Suit No. 110 of 2020 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15830/eng@2023-03-02

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