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ELCDismissedEnvironment & Land Case 557 of 2009· [2023] KEELC 16679 (KLR)

Kariuki & 6 others (Suing on their behalf & as representatives of Kasarini Farmers' Co-operative Society & Karani Self Help Group) v Mbugua & 10 others

Environment and Land Court of Kenya
28 March 2023
3,181 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to revive a land suit that had lapsed after the defendants died, because the plaintiffs waited years without a good reason.

What this practically means

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Executive summary

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In this ruling, the Environment and Land Court at Nairobi (A. Omollo J) dismissed the Plaintiffs' notice of motion dated 17th August 2022 in a long-running land claim over LR No. 7153/R (now LR No. 12825), measuring approximately 377.2 Ha in Kiambu County. The Plaintiffs, suing as representatives of Kasarini Farmers' Co-operative Society and Karani Self Help Group, sought enlargement of time to substitute deceased Defendants with their legal representatives, leave to further amend the plaint, and revival of their claim which had abated against eight deceased Defendants under Order 24 rule 4(3) of the Civil Procedure Rules. The Defendants opposed, contending the suit had abated, the application was res judicata following the dismissal/striking out of a similar 2018 application, the claim was statute-barred under Section 7 of the Limitation of Actions Act, and the estates had already been distributed. The court held that it was uncontested the suit had abated and that revival required sufficient cause. Applying Said Sweilem and Rukwaro Waweru, the court found the Plaintiffs had known of the deaths since 2018, had not specified the challenges preventing earlier substitution, and had waited four years. The 5th and 8th Defendants died before the suit was filed, rendering those claims a nullity incapable of revival. Invoking the maxim that equity aids the vigilant and not the indolent, and noting prejudice to the distributed estates, the court found no sufficient cause and dismissed the application with costs to the Respondents.

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 Plaintiffs knew of the deaths by 2018 yet filed the revival application only in August 2022, and their explanation of challenges in identifying legal representatives was not specific.

Reasoning

The court traced the dates of death of the deceased Defendants, noting most died years before the application. The Plaintiffs' 2018 application had been struck out after a ruling that the suit had abated, yet they waited two more years. Their claimed difficulties in locating administrators were not particularised, and the estates had already been distributed, so revival would occasion prejudice.

02

Effect of abatement under Order 24 rule 4(3) of the Civil Procedure Rules

Holding

It was uncontested that the suit had abated; an abated suit is non-existent until revived and abatement occurs automatically by passage of time.

Reasoning

Relying on Said Sweilem Gheithan Saanum v Commissioner of Lands, the court set out the three stages under Order 24: joinder of the legal representative within time, abatement after one year, and revival upon sufficient cause. Where a suit abates, no fresh suit can be brought on the same cause of action.

p. 5
03

Claims against Defendants who died before the suit was filed

Holding

The 5th and 8th Defendants died before the filing of the suit, so the suit against them was a nullity and cannot be revived.

Reasoning

The court noted the 5th Defendant died on 5th May 1997 and the 8th on 16th May 2008, both before the 2009 filing. Adopting the earlier observation of Okongó J, the court held those claims were a nullity, making revival of the claim against them impossible in law.

p. 6

Legal principles established

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  • An abated suit ceases to exist in the eye of the law and cannot be revived unless sufficient cause for the failure to implead the legal representative within one year is shown
  • The court's discretion to revive an abated suit must be exercised upon being persuaded that there is sufficient cause
  • Equity aids the vigilant and not the indolent

Court orders

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  1. 1.The application dated 17th August 2022 is dismissed
  2. 2.Costs of the application awarded to the Respondents in the said application

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B, 3A and 3B
  • Civil Procedure RulesOrder 24 Rules 3(2), 4(3)
  • Law of Succession ActCap 160
  • Limitation of Actions ActSection 7
  • Trustee ActSection 29 (Cap 167)

Cases cited (2)

  • Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through the Attorney General) & 5 Others
    (2015) eKLR

    Explaining the three stages under Order 24 of the Civil Procedure Rules on death of a party, abatement and revival of suits

  • Rukwaro Waweru v Kinyutho Ritho & Another
    (2015) eKLR

    Court has discretion to extend time for substitution and revive an abated suit if sufficient cause is shown

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; discretionary powers under Order 24 of the Civil Procedure Rules to extend time and revive an abated suit

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, "Kariuki & 6 others (Suing on their behalf & as representatives of Kasarini Farmers' Co-operative Society & Karani Self Help Group) v Mbugua & 10 others", Case Analysis (2023). Environment & Land Case 557 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16679/eng@2023-03-28

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