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ELCDismissedEnvironment & Land Case 702 of 2017· [2023] KEELC 19969 (KLR)

Muchai v Makeri & another

Environment and Land Court
21 September 2023
1,833 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to substitute a deceased plaintiff because the family never asked to revive the abated suit first.

What this practically means

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Executive summary

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The applicant, John Maina Mwangi, administrator of the estate of the late Mwangi Muchai (the original plaintiff), sought substitution of the deceased plaintiff, discharge of prohibitory orders registered against the suit land LOC1/CHOMO/20, and adoption of a notice of withdrawal filed on August 24, 2020, so that the decree in ELC 94 of 2018 (Muranga), in which the deceased was adjudged owner of the land, could be executed. The 1st defendant did not oppose despite service; the 2nd defendant opposed, arguing the application was defective as it sought to execute another court's judgment and that the applicant had filed a multiplicity of suits. The court framed three issues: substitution, discharge of prohibition orders, and adoption of the withdrawal notice. Applying Order 24 rules 1, 2 and 7 of the Civil Procedure Rules and Court of Appeal authority, the court found from the death certificate and grant that the plaintiff died on March 10, 2021, so the suit abated on March 10, 2022. The substitution application, filed about eight months later, was made outside the one-year period and, critically, the applicant never sought revival of the abated suit, which the court held is the proper procedure. Since an abated suit is non-existent in law and can only be resurrected through revival upon sufficient cause, the application was unmerited. It was dismissed with costs to the 2nd defendant.

Key legal issues

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01

Whether substitution of the deceased plaintiff's legal representative could be granted where the suit had abated

Holding

The application was unmerited because the suit abated by operation of law and the Applicant never sought revival, which is the proper route

Reasoning

The court found from the death certificate and grant that the plaintiff died on March 10, 2021, so the suit abated on March 10, 2022. The substitution application was filed about 8 months after abatement without seeking revival under Order 24 rule 7(2). Relying on Court of Appeal authority, an abated suit ceases to exist and can only be resurrected through revival upon sufficient cause being shown.

p. 4

Legal principles established

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  • A suit abates by operation of law one year after a sole plaintiff's death where no application for substitution of the legal representative is made; an abated suit must be revived before substitution can be granted

Court orders

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  1. 1.The application dated November 1, 2022 is dismissed with costs to the 2nd Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 1
  • Civil Procedure RulesOrder 24 rule 2
  • Civil Procedure RulesOrder 24 rule 7(1) and (2)

Cases cited (4)

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

    Three stages under Order 24: substitution, abatement after one year, and revival upon sufficient cause

  • Titus Kiragu Vs Jackson Mugo Mathai
    (2015) eKLR

    A suit abates by operation of law, not by the court's declaration

  • Charles Mugunda Gacheru Vs Attorney General & Another
    (2015) eKLR

    Discretion to revive an abated suit requires sufficient cause

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

    Court's discretion to extend time for substitution and revive abated suits

Jurisdiction invoked
Order 24 rules 1, 2 and 7 of the Civil Procedure Rules (substitution and revival of abated suits)

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, "Muchai v Makeri & another", Case Analysis (2023). Environment & Land Case 702 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19969/eng@2023-09-21

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