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ELCAllowedNot stated in the judgment· [2024] KEELC 308 (KLR)

Ali v Bakari (Environment & Land Case 23 of 2011) [2024] KEELC 308 (KLR)

Environment and Land Court
30 January 2024
1,567 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court revived a land case that had automatically died when the plaintiff passed away, because delays in getting letters of administration explained the gap.

What this practically means

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Executive summary

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The applicants, Fatuma Abdulrahim Abdula and Abdalla Ali Abdalla, legal representatives of the estate of the deceased plaintiff Ali Abdalla Ali (who died on 16th July 2020), moved the court by an application dated 24th September 2022 under Order 24 Rules 4 and 7 of the Civil Procedure Rules 2010 and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act. They sought revival of the suit, which had abated after more than one year elapsed without an application to substitute the deceased plaintiff's legal representatives, and their substitution as parties. The underlying suit concerned plot No. 9091/1/MN, in which the deceased plaintiff alleged the defendant had built a Swahili house on his plot without consent and refused to vacate. The application was unopposed. The court, applying the framework in Said Sweilem Gheithan Saanum v Commissioner of Lands, identified three stages: the cause of action survives death; an application must be made within one year or the suit abates automatically; and revival requires proof of sufficient cause. The court held that the delay in obtaining letters of administration intestate, issued only on 2nd August 2022 in CMCC Succession Cause No. 172 of 2021 (Mombasa), constituted sufficient cause and was not inordinate. Finding the application merited and revival consistent with the interest of justice, the court revived the suit, substituted the applicants for the deceased plaintiff, directed an amended plaint within 30 days, and ordered costs in the cause, while warning the applicants to prosecute the suit actively.

Key legal issues

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01

Sufficient cause for revival of an abated suit under Order 24 Rule 7(2)

Holding

Delay attributable to the non-issuance of letters of administration constitutes sufficient cause; the delay was not inordinate and the application was unopposed, so revival was merited.

Reasoning

The court applied the three-stage framework under Order 24: death of a plaintiff does not abate a surviving cause of action; an application to join the legal representative must be made within one year; failing which the suit abates and only revival on sufficient cause is available. The applicants explained that their petition for letters of administration was filed on 21st May 2021 but the grant issued only on 2nd August 2022, after abatement. The court held this explained the delay, found it not inordinate, and noted the interest of justice favoured determination on the merits.

p. 3
02

Whether a formal order is necessary to confirm abatement

Holding

Although abatement takes effect automatically by operation of law, an order of the court recording the fact of abatement is necessary for convenient and effectual disposal of the suit.

Reasoning

Relying on M'mboroki M'arangacha v Land Adjudication Officer and KFC Union v Charles Murgor, and borrowing Lord Denning's statement in MacFoy v United Africa Co. Ltd, the court acknowledged abatement operates as a nullity automatically, but held that from the language of Order 24 Rule 3(2) the fact of abatement must be brought to the court's notice, proved and recorded, particularly to enable a defendant to claim costs.

p. 3

Legal principles established

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  • Abatement of a suit operates automatically by operation of law upon lapse of one year without an application to join the deceased plaintiff's legal representative, and no fresh suit may be brought on the same cause of action.
  • The effect of an abated suit is that it ceases to exist in the eye of the law; abatement takes effect by passage of time as a legal consequence of the omission to take necessary steps within one year.
  • Whether or not to extend time or grant an order for revival of an abated suit is essentially a matter of judicial discretion.
  • A legal representative seeking revival of an abated suit must prove that they were prevented by sufficient cause from continuing the suit.

Court orders

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  1. 1.This suit is hereby revived.
  2. 2.The deceased plaintiff is hereby substituted with Fatuma Abdulrahim Abdula and Abdalla Ali Abdalla.
  3. 3.The plaintiff to file and serve an amended plaint to reflect the substitution within 30 days of delivery of this ruling.
  4. 4.Costs in the cause.

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 24 Rule 4(1), (2), (3)
  • Civil Procedure Rules 2010Order 24 Rule 7(2)
  • Civil Procedure Rules 2010Order 24 Rule 3(2)
  • Civil Procedure ActSections 1A, 1B, 3 and 3A

Cases cited (4)

  • Said Sweilem Gheithan Saanum v Commissioner of Lands
  • M'mboroki M'arangacha v Land Adjudication Officer, Nyambene and 2 others
    Meru H.C.C. Application No. 45 of 1997
  • KFC Union v Charles Murgor (Deceased)
    NBI HCCC No. 1671 of 1994
  • MacFoy v United Africa Co. Limited
    (1961) 3 All ER 1169
Jurisdiction invoked
Order 24 Rules 4 and 7 of the Civil Procedure Rules 2010; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act

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, "Ali v Bakari (Environment & Land Case 23 of 2011) [2024] KEELC 308 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/308/eng@2024-01-30

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