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ELCDismissedNot stated in the judgment as provided· [2024] KEELC 864 (KLR)

Njenga & another v Muchina & 2 others (Environment & Land Case 440 of 2016) [2024] KEELC 864 (KLR)

Environment and Land Court
22 February 2024
AOA.O. Ombwayo
1,922 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A buyer lost a Kshs. 4 million land refund claim because the seller died and no one substituted him within one year, so the case died too.

What this practically means

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Executive summary

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The plaintiffs sued for refund of Kshs. 4,000,000 being the purchase price of 5 acres forming part of LR 10013/4, general damages for breach of contract, and 10% liquidated damages. Their case was that they bought the land from the 1st Defendant under a sale agreement dated 19th October 2011, paid the full consideration through the firm of Sheth & Wathigo Advocates, took possession, and were forcibly ejected in April 2016 by the 2nd and 3rd Defendants, who allegedly subdivided and sold the land. The 2nd and 3rd Defendants also lodged a counterclaim seeking declaration of ownership and eviction, which was met with a plea of res judicata based on ELC 111 of 2016. Only the 1st Plaintiff testified; the defendants called no evidence, and only the plaintiffs filed submissions. The court framed a single issue: whether the plaintiff was entitled to the orders sought. Applying Order 24 rule 4 of the Civil Procedure Rules, the court noted that the 1st Defendant died in November 2022, that counsel for the plaintiffs sought time to substitute him but never did, and that the court had endorsed abatement of the suit against him on 5th May 2023. Since the claim for refund was pegged entirely on the contract with the 1st Defendant, the cause of action did not survive. The suit was dismissed with no orders as to costs. The counterclaim and the res judicata plea were not addressed in the disposition.

Key legal issues

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Whether the plaintiffs are entitled to the orders sought despite abatement of the suit against the 1st Defendant

Holding

The suit was dismissed because it abated against the 1st Defendant, against whom alone the claim for refund lay

Reasoning

The 1st Defendant died in November 2022. Counsel for the plaintiffs sought time to substitute him but did not do so. The court endorsed abatement on 5th May 2023 under Order 24 rule 4 of the Civil Procedure Rules. Since the plaintiffs' claim for refund and damages was pegged on breach of contract by the 1st Defendant, to whom the purchase price was paid, the cause of action did not survive the abatement.

p. 4

Legal principles established

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  • Upon death of a defendant, if no application to substitute the legal representative is made within one year, the suit abates as against the deceased defendant and the cause of action against him does not survive

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.No orders as to costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute concerning LR 10013/4

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, "Njenga & another v Muchina & 2 others (Environment & Land Case 440 of 2016) [2024] KEELC 864 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/864/eng@2024-02-22

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