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ELCOtherHCCC No. 3A of 2000 (OS), transferred to the Environment and Land Court· [2024] KEELC 1426 (KLR)

Joseph Juma Toboso v Elphas Juma Mdogo & 3 others

Environment and Land Court
14 March 2024
DOD. O. Ohungo
1,375 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The litigation began in the High Court as HCCC No. 3A of 2000 (OS), an Originating Summons by John Toboso Andati claiming 5 acres of Butsotso/Esumeyia/112 by adverse possession against the personal representative of Gabriel Andati's estate and Philip Mutoko; it was later transferred to the Environment and Land Court at Kakamega and underwent several amendments, with Joseph Juma Toboso substituted as plaintiff. The plaintiff testified through PW1, who adopted affidavits of John Toboso alleging that Gabriel Andati purchased 5 acres from Philip Mutoko in 1968 and sold them to John Toboso in 1975, who took possession with his sons continuously thereafter. The defence, through DW1 Elphas Juma Mdogo and DW2 and DW3, denied any sale, contending their father Mudogo Mafwana owned the land and merely permitted John Toboso, a relative of a neighbouring owner, to build on it, and that eviction proceedings were filed in 1994. Only the plaintiff filed submissions, urging that adverse possession was established. The court framed three issues: validity of the suit, adverse possession, and reliefs. It found that John Toboso died on 2nd July 2007 and, no application having been made within one year to join his legal representative, the suit abated on 2nd July 2008 under Order 24 rule 3(2) of the Civil Procedure Rules; the 2012 revival application was never granted and substitution occurred without revival. Holding there was no valid suit before it, the court did not determine adverse possession. It ordered the file closed and made no order on costs.

Key legal issues

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01

Whether the suit survived the death of the initial plaintiff John Toboso Andati

Holding

The suit abated on 2nd July 2008 under Order 24 rule 3(2) of the Civil Procedure Rules; no valid substitution or revival order was ever made

Reasoning

John Toboso died on 2nd July 2007. Order 24 rule 3 requires the legal representative to be joined within one year, failing which the suit abates. Although the plaintiff filed an application dated 17th February 2012 seeking revival, no revival order was made when it came up before G. Dulu, J. on 26th November 2013, no letters of administration were annexed, and the applicant never claimed to be an administrator. Substitution on 26th November 2013 occurred without revival of the abated suit. Accordingly the abatement stood and the court declined to determine the adverse possession issues.

p. 3

Legal principles established

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  • Where a sole plaintiff dies and no application is made within one year to join the legal representative, the suit abates as against the deceased plaintiff
  • A suit that has abated is not a valid suit before the court and cannot sustain the reliefs sought

Court orders

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  1. 1.This suit abated on 2nd July 2008
  2. 2.The file be closed pursuant to Order 24 rule 3(2) of the Civil Procedure Rules
  3. 3.No order on costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 3(1) and (2)
Jurisdiction invoked
Original jurisdiction over the suit transferred from the High Court (HCCC No. 3A of 2000 (OS)); no constitutional provision cited

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, "Joseph Juma Toboso v Elphas Juma Mdogo & 3 others", Case Analysis (2024). HCCC No. 3A of 2000 (OS), transferred to the Environment and Land Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1426/eng@2024-03-14

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