Arodi & another (Suing through their Attorney Nicodemus Atito Arodi) v Midiwo; Housing Finance Company of Kenya & another (Third Party)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the deceased defendant's Third Party claim abated under Order 24 Rule 3(1) and (2)
Yes - the claim abated by operation of law one year after the deceased defendant's death, as no legal representative was appointed and made a party
The court held that a party issuing a Third Party Notice stands in the position of a plaintiff vis-à-vis the Third Party, so Order 24 Rule 3 governs. The deceased died on June 14, 2021; over two years later no legal representative had been appointed or joined. Abatement therefore occurred automatically by effluxion of time, and the court's declaration merely recognises that legal consequence.
Whether the estate may still pursue the Third Party claim
Only if a legal representative is appointed and successfully seeks extension of time for good reason
Relying on the proviso to Order 24 Rule 3(2), the court noted that once a legal representative of the estate is appointed, he may, for good reasons, seek extension of time to revive the Third Party proceedings. Until then, there are no subsisting Third Party proceedings for the estate to pursue.
Recovery of costs of the abated claim
Costs of the abated Notice are recoverable from the estate of the deceased defendant
Order 24 Rule 3(2) permits the court, on the application of the defendant, to award costs incurred in defending the suit, recoverable from the estate of the deceased plaintiff. Applying the same logic to the Third Party relationship, the court ordered costs of the abated Notice to be recovered from the deceased defendant's estate.
Legal principles established
#- Where a party who issued a Third Party Notice dies and no legal representative is appointed and made a party within one year, the claim abates by operation of law
- An abated suit ceases to exist in the eye of the law; abatement occurs by passage of time, not by any act of the court
Court orders
#- 1.The deceased defendant's claim by way of Third Party Notice against the 1st Third Party is declared to have abated
- 2.Costs of the abated Notice shall be recovered from the Estate of the deceased defendant
- 3.The file shall be returned to the Kisumu ELC Registry for safe custody
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; application under Order 24 Rule 3 and Order 17 Rule 2(5) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arodi & another (Suing through their Attorney Nicodemus Atito Arodi) v Midiwo; Housing Finance Company of Kenya & another (Third Party)", Case Analysis (2023). Environment & Land Case 43 of 2020 (Formerly Kisumu ELC Case No. 1 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20939/eng@2023-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.