Kairie v Karia Farmers Co-operative Society Ltd & another; Kitashori (The Legal Representative of the Estate of Godfrey Kahiu Karanja) (Applicant) (Environment & Land Case 81 of 2019) [2024] KEELC 1294 (KLR)
The bottom line
#A Kenyan court struck out a land suit because one defendant had died and the plaintiff waited too long to substitute them, and the other defendant company no longer existed.
What this practically means
#Executive summary
#Key legal issues
#Abatement of suit against a deceased sole defendant
The suit against the 2nd defendant abated on 7th October 2020, one year after his death, since the substitution application was made only on 8th February 2023, approximately two and a half years later
Order 24 Rule 4(3) of the Civil Procedure Rules, 2010 provides that where within one year no application is made to cause the legal representative of a deceased defendant to be made a party, the suit abates as against the deceased defendant. The 2nd defendant died on 7th October 2019; the substitution application was filed on 9th February 2023, well beyond one year. Abatement occurs by operation of law, and an abated suit ceases to exist in the eye of the law.
Suit against a liquidated company
No suit can be entertained against the 1st defendant because it was wound up and ceased to exist
The application was grounded on the fact that the 1st defendant had been liquidated and hence lacked locus standi to sue or be sued. The court found that the company was wound up and does not exist, and therefore struck out the suit against it, since a non-existent legal person cannot be a party to litigation.
Legal principles established
#- Where within one year no application is made to substitute the legal representative of a deceased sole defendant, the suit abates as against the deceased defendant
- Abatement operates by operation of law upon the lapse of one year without the necessary steps being taken
- A wound-up (liquidated) company cannot be sued as it no longer exists in law
Court orders
#- 1.The application dated 9th January 2024 is allowed
- 2.The suit is declared as having abated against the 2nd defendant
- 3.The suit is struck out against the 1st defendant
- 4.No orders as to costs
- Jurisdiction invoked
- Inherent jurisdiction of the court under the Civil Procedure Act and Order 24 of the Civil Procedure Rules, 2010 (not expressly cited to a constitutional article)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kairie v Karia Farmers Co-operative Society Ltd & another; Kitashori (The Legal Representative of the Estate of Godfrey Kahiu Karanja) (Applicant) (Environment & Land Case 81 of 2019) [2024] KEELC 1294 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1294/eng@2024-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.