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ELCPartially AllowedEnvironment & Land Case 43 of 2020 (Formerly Kisumu ELC Case No. 1 of 2019)· [2023] KEELC 20939 (KLR)

Arodi & another (Suing through their Attorney Nicodemus Atito Arodi) v Midiwo; Housing Finance Company of Kenya & another (Third Party)

Environment and Land Court
25 October 2023
1,792 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Busia (BN Olao, J) determined an unopposed Notice of Motion dated August 5, 2023 by Housing Finance Company of Kenya, the 1st Third Party, in a land suit in which the defendant, Washington Jakoyo Midiwo, had obtained leave on February 7, 2019 to commence Third Party proceedings against it. The defendant died on June 14, 2021 and no legal representative was appointed or joined in his place. The 1st Third Party sought a declaration that the Third Party claim had abated under Order 24 Rule 3(1) and (2) of the Civil Procedure Rules, with costs recoverable from the deceased's estate, and alternatively dismissal for want of prosecution under Order 17 Rule 2(5). The court held that a party issuing a Third Party Notice stands as plaintiff vis-à-vis the Third Party, so Order 24 Rule 3 applies; since more than two years had elapsed without substitution, the claim abated by operation of law. Applying Court of Appeal authority (Said Sweilem, Titus Kiragu, Rebecca Mijide Mungole), the court held that abatement occurs automatically by effluxion of time, not by the court's declaration. Counsel Tiego's request, as a friend of the court, for a 30-day mention to await succession proceedings (Kisumu High Court Succession Cause No E2030 of 2021) was declined, though the court noted the estate may seek extension of time once a legal representative is appointed. The court declared the Third Party claim abated, ordered its costs recovered from the deceased's estate, and directed the file's return to the Kisumu ELC Registry.

Key legal issues

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01

Whether the deceased defendant's Third Party claim abated under Order 24 Rule 3(1) and (2)

Holding

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

Reasoning

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.

p. 3
02

Whether the estate may still pursue the Third Party claim

Holding

Only if a legal representative is appointed and successfully seeks extension of time for good reason

Reasoning

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.

p. 4
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Recovery of costs of the abated claim

Holding

Costs of the abated Notice are recoverable from the estate of the deceased defendant

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The deceased defendant's claim by way of Third Party Notice against the 1st Third Party is declared to have abated
  2. 2.Costs of the abated Notice shall be recovered from the Estate of the deceased defendant
  3. 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

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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, "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.