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ELCDismissedAppeal from Nyahururu CM ELC No 278 of 2018· [2024] KEELC 679 (KLR)

Nguyo & another (As Legal Representative of the Estate of Simion Nderi Nguyo – Deceased) v Gitari & another (Environment and Land Appeal 10 of 2023) [2024] KEELC 679 (KLR)

Environment and Land Court
8 February 2024
2,920 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to revive a land suit filed years earlier, confirming that families cannot ignore probate notices published in the Kenya Gazette.

What this practically means

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Executive summary

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This is an appeal against the ruling of Hon. P. Gichohi (CM) dated 01.12.2022 in Nyahururu CM ELC No 278 of 2018, dismissing the Appellants' application seeking revival of their abated suit and substitution of the deceased original Defendant. The suit, filed in 2007, abated after the original Defendant died on 25.03.2017; on an unopposed application by his advocates, the subordinate court declared the suit abated on 06.11.2019. The Appellants' later application for revival was dismissed on the ground that they had failed to show sufficient cause under Order 24 rule 7 of the Civil Procedure Rules. On appeal, framed around three issues, Angima J applied the Mrao Ltd standard for interference with judicial discretion. The court held that the Appellants, being close relatives of the deceased who had issued a citation in 2018, could not feign ignorance of the grant of representation issued to the Respondents on 29.10.2019, of which they had constructive notice through the Kenya Gazette publication. Nothing prevented them from applying for revival between 30.10.2019 and 02.11.2021, and no reasonable explanation was given for that delay. Blaming previous advocates was insufficient, and the Covid-19 argument raised for the first time in submissions was impermissible. Although the trial court had erred in computing the delay as four years rather than two, that error caused no miscarriage of justice. Finding no misdirection in law or other vitiating factor, the court dismissed the appeal and affirmed the trial court's ruling, directing each party to bear their own costs given the familial relationship between the parties.

Key legal issues

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01

Whether the trial court erred in dismissing the application for revival of the abated suit and substitution of the deceased Defendant

Holding

No error; the Appellants failed to show sufficient cause under Order 24 rule 7 for the delay of over two years between October 2019 and November 2021

Reasoning

The trial court exercised judicial discretion which must stand absent misdirection in law, misapprehension of facts or plainly wrong decision. The Appellants knew of the deceased's demise, had issued a citation in 2018, and had constructive notice of the Kenya Gazette publication of the grant issued to the Respondents on 29.10.2019. Nothing prevented them from applying between 30.10.2019 and 02.11.2021. Blaming former advocates and raising Covid-19 for the first time in submissions was impermissible.

p. 6
02

Whether the trial court's mis-reckoning of the delay as 4 years rather than 2 years vitiated its decision

Holding

No; the error did not occasion a miscarriage of justice since the Appellants could not account for even the 2-year delay

Reasoning

The court accepted the trial court reckoned the delay as about 4 years when in reality it was about 2 years from the grant of representation. However, because the Appellants could not satisfactorily explain even the shorter period, the erroneous computation was immaterial and non-vitiating.

p. 6
03

Who bears costs of the appeal

Holding

Each party to bear own costs despite the general rule, because the parties are close relatives

Reasoning

Although costs generally follow the event under the proviso to Section 27 of the Civil Procedure Act as stated in Hussein Janmohamed & Sons, the court exercised its discretion to depart from that rule given the familial relationship between the parties.

p. 6

Legal principles established

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  • An appellate court should not readily interfere with the exercise of judicial discretion unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or was plainly wrong.
  • Parties feigning ignorance of the death of a relative and of grants of representation cannot claim lack of notice where the grant was published in the Kenya Gazette; the law presumes constructive notice.
  • It is not sufficient to blame previous advocates for indolence in prosecuting a suit; and new grounds such as Covid-19 raised for the first time in submissions cannot expand the scope of an application.
  • Costs follow the event under the proviso to Section 27 of the Civil Procedure Act unless the court directs otherwise.

Court orders

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  1. 1.The Appellants' appeal be and is hereby dismissed
  2. 2.The decision of the trial court dated 01.12.2022 in Nyahururu CM ELC 278 of 2018 is hereby affirmed
  3. 3.Each party shall bear his own costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 (rules 7 and 7(2))
  • Civil Procedure RulesOrder 11
  • Civil Procedure Act (Cap 21)Section 27 (proviso)

Cases cited (3)

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
  • Ngotho Commercial Agencies (supra)
On appeal from
Chief Magistrate's Court, Nyahururu
Nyahururu CM ELC No 278 of 2018
Jurisdiction invoked
Appellate jurisdiction over appeals from the Chief Magistrate's Court (Environment and Land) under the Civil Procedure Act and 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, "Nguyo & another (As Legal Representative of the Estate of Simion Nderi Nguyo – Deceased) v Gitari & another (Environment and Land Appeal 10 of 2023) [2024] KEELC 679 (KLR)", Case Analysis (2024). Appeal from Nyahururu CM ELC No 278 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/679/eng@2024-02-08

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