Iraki & another v Ndung'u & another
The bottom line
#A Kenyan land suit collapsed because the family waited over a year after the plaintiff's death to substitute him, so the court struck out the entire case.
What this practically means
#Executive summary
#Key legal issues
#Abatement of suit on death of a plaintiff without substitution within one year
The 2nd Plaintiff's suit abated by operation of law as no substitution application was made within one year of his death on 13/4/2021
Order 24 rules 1, 2, 3 and 5 govern abatement. Death on 13/4/2021 was proven by death certificate and conceded by the 1st Plaintiff. No application for substitution was made within one year, so the suit abated as against the deceased plaintiff on 14/4/2022.
Whether the cause of action survived to the 1st Plaintiff as spouse with beneficial/matrimonial rights
It did not; her claim of beneficial rights was unsupported by evidence and contradicted by the green card showing registration and transfers during the 2nd Plaintiff's lifetime
The 1st Plaintiff's averment of building a matrimonial home in 1992 was unsupported and refuted by the green card showing the 2nd Plaintiff was registered on 27/5/1996 by transmission, later transferring to the 1st Defendant and then the 2nd Defendant, all in his lifetime. Her pleaded claim that the 2nd Plaintiff was 'currently ailing' was untrue and misleading given his proven death.
Legal principles established
#- Where no application for substitution of a deceased plaintiff is made within one year, the suit abates so far as the deceased plaintiff is concerned
Court orders
#- 1.The 2nd Defendant's application dated 28/9/2022 allowed
- 2.The entire suit as contained in the amended plaint struck out
- 3.Costs to the 2nd Defendant/Applicant
- Jurisdiction invoked
- Sections 1A, 1B and 3A Civil Procedure Act and Order 2 rule 15(1) Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Iraki & another v Ndung'u & another", Case Analysis (2023). Environment & Land Case 767 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16424/eng@2023-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.