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ELCDismissedEnvironment & Land Case 842 of 2015· [2023] KEELC 19172 (KLR)

Nduhiu (Deceased) v Nairobi City County & 2 others; Theuri (Applicant)

Environment and Land Court
26 July 2023
LKL. Komingoi
2,469 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by L. Komingoi, J of the Environment and Land Court determined a Notice of Motion dated June 30, 2022 by Robert Kimamo Theuri, the legal representative of the deceased plaintiff James Theuri Nduhiu, seeking reinstatement of the suit dismissed on November 30, 2021, extension of time for substitution, his substitution as plaintiff under a limited grant ad litem issued March 29, 2021, and leave to amend the plaint. The plaintiff had died on December 28, 2017 and the suit was marked abated on March 11, 2021 for failure to substitute him within one year under Order 24 Rule 4 of the Civil Procedure Rules. The 1st and 2nd Defendants opposed, citing unexplained delay, indolence, limitation of actions, want of procedure (extension of time should have preceded revival) and res judicata arising from the earlier dismissed application. The court framed three issues: revival/reinstatement, extension of time, and costs. It held the suit abated by operation of law on December 29, 2018, so the court had no jurisdiction when it marked the suit abated in 2021; that the four-to-five-year delay was unexplained, with Covid-19 dismissed as a mere excuse; and that the applicant was an indolent litigant undeserving of the court's discretion. Relying on Charles Mugunda Gacheru, John Githinji Gichira and Rebecca Mijide Mungole, the court found no sufficient cause was established and dismissed the application with costs to the Defendants/Respondents.

Key legal issues

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01

Whether the suit should be revived and/or reinstated

Holding

No - the applicant failed to demonstrate sufficient cause; the suit had abated by operation of law in 2018

Reasoning

The plaintiff died on December 28, 2017 and was not substituted within one year as required under Order 24 Rule 4. The suit therefore abated on December 29, 2018. The limited grant ad litem was only issued on March 29, 2021, and no satisfactory explanation was given for the delay; the Covid-19 excuse was rejected as a mere excuse. The applicant's earlier application was dismissed for non-attendance and no follow-up was shown.

p. 4
02

Whether time for substitution ought to be extended

Holding

No - the inordinate and unexplained delay disentitled the applicant to the court's discretion

Reasoning

The court held that the applicant had to establish sufficient cause for the delay in obtaining the grant ad litem and in moving the court after the abatement and dismissal orders. The delay of four to five years was unexplained, the Covid-19 excuse was untenable, and the applicant's conduct amounted to indolence undeserving of the court's discretion.

p. 4
03

Who should bear costs of the application

Holding

The Defendants/Respondents, as the application was dismissed

Reasoning

Having found no merit in the application, the court exercised its ordinary discretion on costs in favour of the successful defendants, dismissing the application with costs to the Defendants/Respondents.

p. 5

Legal principles established

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  • An abated suit may only be revived where the applicant proves sufficient cause preventing continuation of the suit
  • An application for revival of an abated suit must be preceded by an application for extension of time
  • A suit abates by operation of law one year after the plaintiff's death where no substitution application is made

Court orders

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  1. 1.The Notice of Motion dated June 30, 2022 is dismissed with costs to the Defendants/Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 3(2)
  • Civil Procedure RulesOrder 24 Rule 4
  • Civil Procedure RulesOrder 24 Rule 7(2)
  • Civil Procedure RulesOrder 50 Rules 1 and 6
  • Civil Procedure ActSections 1A, 1B, 3 & 3A
  • Constitution of Kenya 2010Article 159

Cases cited (12)

  • Rebecca Mijide Mungole & another v Kenya Power and Lighting Company Ltd & 2 others
    [2017] eKLR

    Where a suit abates no fresh suit can be brought; extension of time should precede revival application

  • James Mwaniki Kinuthia v Hemed Iddi Mukui & another
    [2019] eKLR
  • Issa Masudi Mwabumba v Alice Kavenya & 4 others
    [2012] eKLR
  • Kamau Kania v Patrick Rerimoi & 2 others
    [2017] eKLR
  • Rukwaro Waweru v Kinyutho Ritho & another
    [2015] eKLR

    Threshold of sufficient cause for extension of time and revival

  • William Muinde Kilundo v Peter K Wambua & 3 others
    [2018] eKLR

    Application defective for want of procedure - extension of time should be sought first

  • Charles Mugunda Gacheru v Attorney General & another
    [2015] eKLR

    Court must be satisfied applicant was prevented by sufficient cause; casual handling causes delay

  • John Githinji Gichira v Bernard Minene Gichira
    [2018] eKLR

    Factors for extension of time; unexplained inordinate delay disentitles applicant

  • Mehta v Shah
    [1965] EA 321
  • Gopal Ramji Ladha Patel v City Finance Bank Limited
    (2008) eKLR

    Abated appeal remains dead as a dodo; extension of time would be futile

  • Vyatu Limited and Another v Public Trustee Nyanza Province
    (2003) KLR 688
  • Samwel Nyoike Nduati v Republic
    Civil Application No Nai 292 of 2003 (Unreported)
Jurisdiction invoked
Article 159 of the Constitution of Kenya 2010; Sections 1A, 1B, 3 & 3A of the Civil Procedure Act; Order 24 and Order 50 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, "Nduhiu (Deceased) v Nairobi City County & 2 others; Theuri (Applicant)", Case Analysis (2023). Environment & Land Case 842 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19172/eng@2023-07-26

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