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ELCDismissedOriginating Summons dated 2nd March, 2023· [2024] KEELC 349 (KLR)

Ndungu v Kingori & another (Enviromental and Land Originating Summons E5 of 2023) [2024] KEELC 349 (KLR)

Environment and Land Court
1 February 2024
AOA.O. Ombwayo
1,336 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When a person sues to reclaim land they gifted while dying, that personal claim dies with them — their estate cannot continue the suit.

What this practically means

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Executive summary

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The deceased plaintiff commenced an Originating Summons dated 2nd March 2023 seeking declarations under Section 31 of the Law of Succession Act that he was entitled to demand return of two properties, Nakuru/Moi Ndambi/4262 and 4263, which he had transferred to the 1st Defendant in 2020 in contemplation of death after being diagnosed with prostate cancer, and consequential orders for re-transfer from the 2nd Defendant. The plaintiff died on 17th June 2023 before the summons could be heard. The court directed the parties to submit on whether the suit abated. The plaintiff's counsel argued that the properties reverted upon demand under Section 31 and formed part of the estate, so the suit survived. The defendants contended the cause of action was personal and died with the plaintiff, and sought that the suit be marked closed with no order as to costs. Applying Order 24 Rule 3(1) of the Civil Procedure Rules and the Court of Appeal's decision in Karl Wehner Claasen v Commissioner of Lands & 4 others, the court held that the claim was personal to the plaintiff; the maxim actio personalis moritur cum persona applied and the cause of action did not survive his death. The originating summons was dismissed with no order as to costs on 1st February 2024.

Key legal issues

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Whether the cause of action survived the death of the plaintiff

Holding

The suit was personal to the plaintiff; the maxim actio personalis moritur cum persona applies and the cause of action did not survive his death, so the originating summons was dismissed

Reasoning

The deceased had transferred the suit properties to the 1st Defendant in contemplation of death, and later sought their return under Section 31 of the Law of Succession Act to fund medical treatment. Applying Order 24 Rule 3(1) of the Civil Procedure Rules and the Court of Appeal's holding in Karl Wehner Claasen, the court found that the claim for return of the gifted properties was personal to the plaintiff. With his death, the action died with him and the suit could not continue.

p. 3

Legal principles established

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  • Causes of action of a personal nature do not survive for the benefit of a deceased's estate, per the maxim actio personalis moritur cum persona

Court orders

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  1. 1.The originating summons is dismissed with no order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 1
  • Civil Procedure RulesOrder 24 Rule 2
  • Civil Procedure RulesOrder 24 Rule 3(1)
  • Civil Procedure RulesOrder 24 Rule 7(2)
  • Law Reform ActSection 2(1)
  • Law of Succession Act Cap 160Section 31

Cases cited (3)

  • David Sironga Ole Tukai v Francis Arap Muge & 2 Others
    [2014] eKLR
  • Adetoun Oladeji (NIG) v Nigeria Breweries PLC
    SC 91/2002
  • Karl Wehner Claasen v Commissioner of Lands & 4 others
    [2019] eKLR
Jurisdiction invoked
Original civil jurisdiction over land matters; issue of abatement of suit determined under Order 24 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, "Ndungu v Kingori & another (Enviromental and Land Originating Summons E5 of 2023) [2024] KEELC 349 (KLR)", Case Analysis (2024). Originating Summons dated 2nd March, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/349/eng@2024-02-01

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