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ELCPartially AllowedEnvironment & Land Case 324 of 2017· [2023] KEELC 16931 (KLR)

Mohamed v Arthur & another

Environment and Land Court
26 April 2023
SKS. M. Kibunja
1,498 words in judgment
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The bottom line

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A Kenyan land suit died with its plaintiff because no one applied to substitute him within one year, and the family's late attempt failed.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (S. M. Kibunja, J) determined two competing applications arising from the death of the plaintiff, Ibrahim Musa Mohamed, on 31st December 2020, and of the 1st defendant, Mwanatumu Athuman Arthur, on 22nd February 2020, while the land suit was awaiting judgment. The 1st defendant's administrator moved by notice of motion dated 18th August 2022 under Order 24 Rules 3(1) & (2) and 7(1) and Order 51 Rule 1 seeking a declaration that the suit had abated, no substitution application having been filed within one year of the plaintiff's death. The plaintiff's estate, which had obtained a limited grant ad litem from the Chief Magistrate's Court at Mombasa on 25th October 2022, opposed the application and separately sought substitution of four administrators by chamber summons. The court framed three issues: abatement, substitution, and costs. It held that Order 24 Rule 3(2) operates in mandatory terms, that no substitution application was filed within one year of death, and that the suit therefore stood abated on or about 1st January 2022. Consequently, when the chamber summons was filed there was no subsisting suit into which the applicants could be substituted; following the Court of Appeal's decision in Rebecca Mijide Mungole, they should first have sought extension of time. The 1st defendant's motion was allowed, the substitution application dismissed, costs awarded against the estate and the applicants respectively under section 27 of the Civil Procedure Act, and the file closed.

Key legal issues

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01

Whether the plaintiff's suit abated on the death of the plaintiff

Holding

The suit abated on or about 1st January 2022 because no application to substitute the deceased plaintiff was filed within one year of his death on 31st December 2020.

Reasoning

Order 24 Rule 3(2) of the Civil Procedure Rules provides in mandatory terms that where no application under subrule (1) is made within one year, the suit abates as far as the deceased plaintiff is concerned, and the defendant may be awarded costs recoverable from the estate. The court perused the record and found no evidence of any substitution application filed within the one-year period.

p. 3
02

Whether the applicants could be substituted for the deceased plaintiff

Holding

The substitution application was dismissed because the suit had already abated and no longer existed.

Reasoning

The chamber summons was filed almost two years after the plaintiff's death and over three months after the abatement application. By operation of Order 24 Rule 3(2) the suit had abated on or about 1st January 2022, leaving no suit in existence into which the applicants could be substituted. Following Rebecca Mijide Mungole, they ought first to have sought extension of time to apply for substitution.

p. 3

Legal principles established

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  • Where no application to substitute a deceased plaintiff is made within one year of death, the suit abates by operation of Order 24 Rule 3(2) and the court may award the defendant costs from the estate.
  • Once a suit has abated, a party seeking substitution must first seek extension of time to apply for substitution before moving to be substituted.

Court orders

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  1. 1.The 1st defendant's notice of motion dated 18th August 2022 allowed in terms of prayer (1) with costs against the estate of the deceased plaintiff; the plaintiff's suit deemed to have abated on or about 1st January 2022.
  2. 2.The applicants' chamber summons dated 29th November 2022 dismissed with costs to the 1st defendant.
  3. 3.The file be closed.

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 3(1) & (2)
  • Civil Procedure RulesOrder 24 Rule 7(1)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure Actsections 1, 1A, 1B, 3, 3A and 63(e)
  • Civil Procedure Actsection 27
  • Environment and Land Court Actsection 13
  • Constitution of Kenya, 2010Articles 1, 2, 3, 10, 12, 19, 20, 21, 22, 23, 24, 25, 28, 39, 40, 47, 48, 50, 60, 64, 159, 162, 165, 169, 258 and 259

Cases cited (1)

  • Rebecca Mijide Mungole & another v Kenya Power & Lighting Co. Ltd & 2 others
    CACA No. 283 of 2015

    That a party seeking substitution after abatement must first seek extension of time to apply for substitution.

Jurisdiction invoked
Sections 1, 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; section 13 of the Environment and Land Court Act; Articles 1, 2, 3, 10, 12, 19, 20, 21, 22, 23, 24, 25, 28, 39, 40, 47, 48, 50, 60, 64, 159, 162, 165, 169, 258 and 259 of the Constitution 2010 (as invoked in the chamber summons)

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, "Mohamed v Arthur & another", Case Analysis (2023). Environment & Land Case 324 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16931/eng@2023-04-26

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