Bii v Chepkwony
The bottom line
#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
#Executive summary
#Key legal issues
#Whether sufficient cause was shown to revive the abated suit and extend time for substitution
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.
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.
Whether the application was an abuse of court process given the parallel suit before the Chief Magistrate's Court
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.
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
#- 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
#- 1.The Applicant's Notice of Motion dated 2nd June 2022 seeking revival of the abated suit and substitution is dismissed
- 2.Costs of the application to the Defendant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.