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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 1294 (KLR)

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)

Environment and Land Court (station not expressly stated; delivered virtually at Nakuru)
7 March 2024
737 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a ruling on a notice of application dated 9th January 2024 seeking to strike out the plaintiff's suit against the 1st defendant on the ground that the company had been liquidated and thus ceased to exist and lacked locus standi to sue or be sued, and to declare that the suit against the 2nd defendant, Godfrey Kahiu Karanja, had abated following his death on 7th October 2019. The applicant relied on Order 24 Rule 4(3) of the Civil Procedure Rules, 2010, contending that the suit abated one year after the deceased 2nd defendant's demise and that continuation of the suit would be an abuse of process consuming judicial time and resources. The plaintiff opposed via a replying affidavit, asserting that Peter Sankale Kitashori was already a party to the suit and that the suit had not abated and remained pending for hearing on merit. The court considered Order 24 Rules 1 to 4, and found that the 2nd defendant died on 7th October 2019 and the suit abated on 7th October 2020; the substitution application made on 8th February 2023 and filed on 9th February 2023 came approximately two and a half years after abatement. Abatement operates by its own force with the passage of time. The court also found that the 1st defendant was wound up and does not exist, so no suit can be entertained against it. The application was allowed: the suit was declared abated against the 2nd defendant, struck out against the 1st defendant, with no orders as to costs. Judgment delivered virtually at Nakuru on 7th March 2024 by A O Ombwayo, Judge.

Key legal issues

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01

Abatement of suit against a deceased sole defendant

Holding

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

Reasoning

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.

p. 2
02

Suit against a liquidated company

Holding

No suit can be entertained against the 1st defendant because it was wound up and ceased to exist

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 9th January 2024 is allowed
  2. 2.The suit is declared as having abated against the 2nd defendant
  3. 3.The suit is struck out against the 1st defendant
  4. 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

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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, "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.