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ELCDismissedEnvironment & Land Case 53 of 2018· [2023] KEELC 16637 (KLR)

Bii v Chepkwony

Environment and Land Court of Kenya
23 March 2023
2,772 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 refused to revive a land suit that died with its plaintiff, because the family delayed and filed a duplicate case elsewhere.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (M.C. Oundo, J) determined a Notice of Motion dated 2 June 2022 by Naomi Chepkoech Bii, widow and administrator ad litem of the deceased plaintiff Moses Arap Bii, seeking revival of the abated suit, extension of time, and her substitution in place of the deceased plaintiff. The suit, filed on 26 June 2018 over land parcel Kericho Municipality Block 5/701, abated on 21 June 2021, one year after the plaintiff's death on 21 June 2020, and abatement was pronounced by the court on 16 December 2021. The applicant attributed the delay to family wrangles, Covid-19 issues, loss of income and closure of courts. The defendant opposed, arguing the applicant had obtained a grant ad litem on 3 February 2021 yet failed to move the court within the year, had declined his counsel's invitations to take over the suit, and had instead joined her co-administrator Kenneth Kipkoech Tanui in filing a fresh suit (Kericho CM ELC No. 024 of 2022) seeking identical eviction orders against the same defendant over the same land. The court held that no sufficient cause was shown: the grant ad litem predated abatement by over six months, and the applicant's explanation left unexplained gaps. It further found the parallel suit rendered the application an abuse of process and a fishing expedition, and that allowing it would offend Section 6 of the Civil Procedure Act on subjudice. The application was dismissed with costs.

Key legal issues

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01

Whether sufficient cause was shown to revive the abated suit and extend time for substitution

Holding

No sufficient cause was shown; the applicant had the grant ad litem more than six months before abatement, was alerted by the defendant's counsel, and gave no adequate explanation for the delay.

Reasoning

The court found the letters of administration ad litem were issued on 3 February 2021, over six months before the suit abated on 21 June 2021, and the defendant's counsel had written as early as 28 August 2020 asking the applicant to take out letters of administration. The explanations of family wrangles and Covid-19 did not account for the inaction after the grant was obtained, so the explanation left unexplained gaps.

02

Whether the application was an abuse of court process given the parallel suit before the Chief Magistrate's Court

Holding

Yes; the applicant, in concert with her co-administrator, filed a fresh suit (CM ELC No. 024 of 2022) seeking identical orders over the same land against the same defendant, disentitling her to the court's discretion.

Reasoning

The court noted the applicant's joint administrator had sought the same eviction orders in the magistrates' court after this suit abated. The court characterized this as a fishing expedition for a favourable forum, held the applicant came with soiled hands, and held that allowing the application would offend Section 6 of the Civil Procedure Act on subjudice.

Legal principles established

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  • A suit abates by operation of law when no substitution is made within one year of a plaintiff's death, but the court retains discretion to revive an abated suit where sufficient cause is shown.
  • Sufficient cause for revival must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps, and the applicant must come to court with clean hands.

Court orders

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  1. 1.The Applicant's Notice of Motion dated 2nd June 2022 seeking revival of the abated suit and substitution is dismissed
  2. 2.Costs of the application to the Defendant

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 24 Rules 1, 3 and 7
  • Civil Procedure RulesOrder 50
  • Civil Procedure RulesOrder 51

Cases cited (3)

  • Issa Masudi Mwabumba vs. Alice K. Mutunga & 4 Others
    2012 eKLR

    Procedure for revival and substitution of an abated suit in the same application, in that sequence

  • Gladys N. Mwaura vs. Daniel Kariuki
    (2018) eKLR

    Same proposition on revival and substitution of abated suits

  • The Hon. Attorney General v The Law Society of Kenya & Another
    Civil Appeal (Application) No. 133 of 2011

    Definition of sufficient cause as rational, plausible, logical, convincing, reasonable and truthful

Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 24 Rules 1, 3 and 7, Orders 50 and 51 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, "Bii v Chepkwony", Case Analysis (2023). Environment & Land Case 53 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16637/eng@2023-03-23

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