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ELCDismissedEnvironment & Land Case 41 of 2008· [2023] KEELC 17229 (KLR)

Gachu & another v Ndocha & another

Environment and Land Court
27 April 2023
3,224 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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A Kenyan court refused to kill a land suit over a dead plaintiff because the defendant waited too long and had earlier gone along with the case continuing.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (O. A. Angote, J) determined a notice of motion dated October 22, 2021 by the 1st Defendant, Geoffrey Nyakundi Ndocha, seeking to set aside the proceedings of October 4, 2021, to declare the suit of the deceased 1st Plaintiff, Stephen Mungai Gachu, abated as at August 9, 2018, to award him costs of defending the abated suit, to expunge all references to Alex Njoroge Gachu from post-abatement pleadings, and to strike out the 2nd Plaintiff Margaret Wanjiku's suit against him. The 1st Plaintiff had died on August 10, 2017 and no substitution application was made within one year, so the suit abated by operation of law. The 2nd Plaintiff opposed, arguing the suit survived her as co-plaintiff, that she and Alex Gachu obtained letters of administration, and that the Applicant waived any objection by participating in the proceedings. The court framed two issues: whether the 2nd Plaintiff's suit survived the 1st Plaintiff's demise, and whether Alex Gachu was rightfully enjoined. On the first, the court declined to find the suit did not survive, noting possible agency or trust exceptions to privity of contract. On the second, although the suit had abated, the court held the Applicant estopped by acquiescence, having failed to oppose the substitution, filed an Amended Defence and Counterclaim, and participated in the hearing; the delay in the application constituted laches. The application was dismissed with costs.

Key legal issues

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01

Whether the 2nd Plaintiff's suit survived the 1st Plaintiff's death

Holding

The court declined to hold that the suit did not survive, since possible agency or trust exceptions to privity of contract could apply to the 2nd Plaintiff as the deceased's wife.

Reasoning

The suit sought to enforce sale agreements to which only the deceased 1st Plaintiff and the 1st Defendant were parties. Privity of contract would ordinarily bar the 2nd Plaintiff, but the court noted the well-known exceptions (collateral contract, agency, trust, express benefit) and, without interrogating the documents, found the question of agency or trust debatable and left it open at this stage.

p. 5
02

Whether Alex Gachu was rightfully enjoined in place of the deceased 1st Plaintiff

Holding

Although the suit abated by operation of law on August 9, 2018, the Applicant acquiesced to the revival and substitution and is estopped from challenging it; the delay in the application constituted laches.

Reasoning

The suit abated because no substitution application was made within one year. However, the Applicant did not oppose the oral application of November 28, 2018 for leave to amend and substitute, filed an Amended Defence and Counterclaim, and participated in pre-trial directions and hearing. Citing authorities on waiver and acquiescence, the court held the Applicant estopped and the delay unreasonable.

p. 6

Legal principles established

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  • Where one of multiple plaintiffs dies and the suit survives, the matter proceeds at the instance of the surviving plaintiffs under Order 24 Rule 2.
  • A suit abates where no application for substitution of a deceased plaintiff is made within one year under Order 24 Rule 3(2).
  • A defendant who acquiesces to the revival and substitution of a deceased plaintiff is estopped from later raising abatement.

Court orders

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  1. 1.The application dated October 22, 2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 2
  • Civil Procedure RulesOrder 24 Rule 3(1) and (2)
  • Civil Procedure ActOrder 24 Rule 3(2)

Cases cited (16)

  • Mukulu Kaula & Another v Agnes Milele & 3 Others
    [2019] eKLR

    Abatement of suit and non-revival under Order 24

  • Kenya Farmers Co-operative Union Limited v Charles Murgor (Deceased) /a Kaptabei Coffee Estate
    [2005] eKLR

    Abatement of suit following death of a plaintiff

  • Rebecca Mijide Mungole & another v Kenya Power & Lighting Co Ltd & 2 Others
    [2017] eKLR

    Where a suit has abated, an application for extension for joinder of the deceased's legal representative is imperative

  • Henry Muthee Kathurima vs Commissioner of Lands & another
    [2015] eKLR

    Estoppel does not apply to matters stemming from express provisions of the law

  • Mcllkenny v Chief Constable of West Midlands
    [1980] All ER 2027

    Waiver (quoted in 748 Air Services Limited v Theuri Munyi)

  • 748 Air Services Limited v Theuri Munyi
    [2017] eKLR

    Source of the quotations on waiver

  • Banning v Wright
    (1972) 2 All ER 987

    Definition of the term 'waiver'

  • Rajnikanthkhetshi Shah v Habib Bank AG Zurich
    [2016] eKLR

    Implied waiver from conduct inconsistent with continuance of a right

  • Julian Adoyo Ongunga & Another v Francis Kiberenge Bondeva
    [2016] eKLR

    Locus standi is cardinal; a party without it cannot maintain a suit

  • Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & Another
    [2015] eKLR

    Doctrine of privity of contract

  • Aineah Likuyani Njirah vs Aga Khan Health Services
    [2013] eKLR

    Privity rule - only parties privy to a contract can enforce its terms

  • William Muthee Muthoni vs Bank of Baroda
    [2014] eKLR

    Exceptions to the doctrine of privity of contract

  • Serah Njeri Mwobi v John Kimani Njoroge
    [2013] eKLR

    Silence and participation in legal proceedings constitutes waiver

  • Leonidas D
    [1985] 1 WLR 925

    Equitable estoppel and the equivocal nature of silence

  • Boniface Mutwiri Kungania v Japhet Kirimi M'rinkanya
    [2022] eKLR

    Defendant estopped by silence and acquiescence from raising abatement

  • Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd

    Identification of privity as a fundamental principle of English contract law

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act; application under Order 24 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, "Gachu & another v Ndocha & another", Case Analysis (2023). Environment & Land Case 41 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17229/eng@2023-04-27

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