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ELCAllowedNotice of Motion Application dated 27th April 2023· [2024] KEELC 805 (KLR)

Mwanzia (The legal representative of the Estate of Boniface Mutinda Kabaka (Deceased) t/a Kabaka & Associates Advocates v Machakos County Government (Environment and Land Miscellaneous Application 387 of 2017) [2024] KEELC 805 (KLR)

Environment and Land Court
21 February 2024
1,921 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Machakos revived a land suit that had legally died, ruling the delay was explained by her late advocate's death.

What this practically means

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Executive summary

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The court determined a Notice of Motion dated 27th April 2023 brought by Vascoline Katanu Mwanzia, the legal representative of a deceased plaintiff, seeking revival of an abated suit, extension of time for substitution, substitution of the deceased advocate, and the coming on record of the firm of B.M. Musau & Co. Advocates LLP. The deceased advocate died on 11th December 2020, and the suit abated by operation of law on 11th December 2021. The applicant obtained a Limited Grant of Letters of Administration Ad Litem in 2022 but filed the application in April 2023, explaining that her advocates needed time to familiarize themselves with the matter and could not trace the deceased advocate's file. The respondent, the County Government of Machakos through its County Attorney, opposed, contending that no sufficient cause was shown under Order 24 Rule 7(2) of the Civil Procedure Rules and that the applicant was indolent. Applying the test that sufficient cause must be rational, plausible, convincing and truthful, and guided by the Court of Appeal's decision in Issa Masudi Mwabumba and the overriding objective, the court found the delay explanation plausible, noted the respondent had not demonstrated substantial loss, and held that the applicant had shown sufficient cause. The court revived the abated suit, allowed the incoming firm on record post-judgment under Order 9 Rule 9, deemed the Notice of Change of Advocates dated 24th February 2023 properly on record, and allowed substitution of the deceased advocate. The application was allowed in its entirety, with costs in the cause.

Key legal issues

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01

Whether the applicant demonstrated sufficient cause to revive the suit abated since December 2021

Holding

Yes; the explanation for the delay was plausible, the respondent showed no substantial loss, and the overriding objective favoured determination on the merits.

Reasoning

The suit abated by operation of law in December 2021 after the deceased advocate died on 11th December 2020. The applicant filed the application one year, four months after abatement, explaining that advocates needed time to familiarize themselves with the matter and could not trace the deceased advocate's file. The respondent opposed but did not demonstrate substantial loss. Guided by the overriding objective and precedent, the court found sufficient cause and revived the suit.

p. 4
02

Whether the incoming firm B.M. Musau & Co. Advocates LLP could come on record post-judgment

Holding

Yes; the prayer was unopposed and complied with Order 9 Rule 9 of the Civil Procedure Rules, and the Notice of Change of Advocates was deemed properly on record.

Reasoning

Order 9 Rule 9 requires a court order or consent for change of advocate after judgment. Since the respondent's counsel did not oppose and the court had revived the suit, the court allowed the firm on record and deemed the Notice of Change of Advocates dated 24th February 2023 properly on record.

p. 4
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Whether the applicant could substitute the deceased advocate

Holding

Yes; having allowed revival of the abated suit, the court permitted substitution of the deceased.

Reasoning

Substitution flowed as a consequence of the revival: once the suit was revived and sufficient cause established, the court granted leave to substitute the deceased advocate so the pending Application dated 18th December 2019 could be prosecuted to a conclusive end.

p. 4

Legal principles established

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  • The power to revive an abated suit or extend time for substitution is discretionary, turning on whether sufficient cause prevented continuation of the suit.
  • Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps.
  • An advocate's failure or mistake cannot be attributed to the applicant when assessing sufficient cause, in line with the overriding objective.

Court orders

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  1. 1.The firm of B.M. Musau & Co. Advocates LLP allowed to come on record on behalf of the Applicant
  2. 2.The Notice of Change of Advocates dated 24th February 2023 deemed properly on record
  3. 3.The abated suit revived
  4. 4.Time extended and leave granted to substitute the deceased advocate
  5. 5.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 7(2)
  • Civil Procedure RulesOrder 9 Rule 9
  • Appellate Jurisdiction ActSections 3A and 3B
  • Constitution of Kenya, 2010Article 159

Cases cited (4)

  • Elizabeth Wanjiru Njenga & Another v Margaret Wanjiru Kinyara & 2 Others
    (2018) eKLR
  • Joseph Kahonge Muthondu v John Thuo Macharia & Elizabeth Muthoni Kahonge
    (2019) eKLR
  • The Hon. Attorney General Vs the Law Society of Kenya & Another
    Civil Appeal (Application) No. 133 of 2011
  • Issa Masudi Mwabumba vs Alice Kavenya Mutunga & 4 others
    [2012] eKLR
Jurisdiction invoked
Order 24 Rule 7(2) of the Civil Procedure Rules (revival of abated suits), Order 9 Rule 9 (change of advocates) and sections 3A and 3B Civil Procedure Act (overriding objective)

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, "Mwanzia (The legal representative of the Estate of Boniface Mutinda Kabaka (Deceased) t/a Kabaka & Associates Advocates v Machakos County Government (Environment and Land Miscellaneous Application 387 of 2017) [2024] KEELC 805 (KLR)", Case Analysis (2024). Notice of Motion Application dated 27th April 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/805/eng@2024-02-21

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