Kessei v Kipkabus & 6 others; Muge (Applicant)
The bottom line
#Kenya's Environment and Land Court revived a land suit that had lapsed after the owner died, letting his beneficiary continue the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the abatement order should be set aside and the suit revived
Yes - the applicant showed sufficient cause; delay was partly explained by the Covid-19 pandemic and lack of knowledge of the abatement order.
The court applied Order 24 Rule 7(2), which permits revival of an abated suit where the applicant was prevented by sufficient cause from continuing with the suit. The applicant explained the death, the grant of letters of administration in 2019, and her ignorance of the abatement order. The court took judicial notice that court operations slowed in 2020 and part of 2021 due to Covid-19, so the delay was not inordinate.
Whether the deceased plaintiff should be substituted by the applicant
Yes - the applicant, a beneficiary and legal representative of the deceased, was substituted for the deceased plaintiff.
The applicant deponed she is a beneficiary of the late John Kimuge Kessei and that a grant of letters of administration had been obtained. Having found sufficient cause for the failure to substitute within one year, the court exercised its discretion under Order 24 to substitute her and ordered amendment of the plaint to reflect the substitution.
Legal principles established
#- A suit abates by operation of law when no substitution is made within one year of death, but the court has discretion to revive an abated suit where sufficient cause is shown.
- Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps.
Court orders
#- 1.The order marking the suit as having abated is hereby set aside and the suit is revived.
- 2.The deceased plaintiff is hereby substituted with Beatrice Jelagat Muge.
- 3.The Plaint shall be amended to reflect the name of the substituted plaintiff within 21 days from the date of the ruling.
- 4.The costs of the application shall be in the cause.
- Jurisdiction invoked
- Order 24 Rule 7(2) and Order 45 Rules 1 and 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kessei v Kipkabus & 6 others; Muge (Applicant)", Case Analysis (2023). Environment & Land Case 888 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19121/eng@2023-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.