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ELCPartially AllowedNotice of Motion dated 31st July, 2023 (arising from Kericho Civil Suit No. 100 of 2005; suit number not stated in judgment)· [2024] KEELC 1525 (KLR)

Philip Kimutai Langat p/a Kiplangat Arap Maina v Maina; Bet (Being the Legal Representative of the Estate of Kibet Arap Maina alias Job Kibet Maina - Deceased) (Interested Party) (Environment & Land Case 100 of 2005) [2024] KEELC 1525 (KLR)

Environment and Land Court
21 March 2024
5,528 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court voided a land judgment because the case automatically died when both parties passed away years earlier and no one revived it.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Naivasha (M.C. Oundo, J) on a Notice of Motion dated 31st July, 2023 by the interested party, Zachariah Kipkoech Bett, seeking to be joined as legal representative of the estate of the deceased defendant, John Kibet Maina, and to have the ex parte judgment of 28th April, 2022 varied, reviewed or set aside, the suit declared abated, the original parcel Kericho/Sosiot/604 restored, and execution stayed. The underlying suit was instituted in 2005; both the plaintiff and the defendant died in December 2013, though substitution leave had been granted on 3rd June 2015. The interested party obtained a temporary grant of letters of administration only on 20th January 2020 and was never substituted. Judgment was nonetheless delivered on 28th April 2022, cancelling the title to Kericho/Sosiot/1655 and reinstating Kiplangat Arap Maina's name. The court framed two issues: joinder of the applicant and whether the judgment should be set aside. Applying Order 24 Rule 4(3) of the Civil Procedure Rules, the court held that the suit abated one year after the parties' deaths since no substitution application was made and no revival application followed. Judgment delivered thereafter was a nullity and an error apparent on the face of the record. Joinder was refused because no suit subsisted. The application was allowed only to the extent that the judgment of 28th April 2022, the consequent decree and orders were set aside; the claim for restoration of the land and stay was not granted. There were no orders as to costs.

Key legal issues

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01

Whether the suit abated upon the deaths of the parties

Holding

The suit abated by operation of Order 24 Rule 4(3) since no substitution application was made within one year of the parties' deaths in 2013, and no revival application was ever made

Reasoning

Both parties died in December 2013. Although leave for substitution was granted on 3rd June 2015, the legal representative only obtained letters of administration on 20th January 2020 and no substitution was effected within one year, nor was the abated suit revived. Consequently, when judgment was delivered on 28th April 2022 there was no subsisting suit.

p. 9
02

Whether the ex parte judgment of 28th April 2022 could stand

Holding

The judgment and resulting decree were delivered in error and were null and void, and were set aside as an error apparent on the face of the record

Reasoning

The court found that judgment was delivered against parties who were deceased and whose suit had abated, without substitution. Such a judgment was a nullity. The error was apparent on the face of the record, satisfying the grounds for review under Section 80 and Order 45, warranting setting aside.

p. 10
03

Whether the Applicant should be joined as legal representative of the deceased Defendant

Holding

Joinder could not be ordered because the suit had abated and ceased to exist

Reasoning

While the court is clothed with discretion under Sections 1B and 3A of the Civil Procedure Act, it could not join the Applicant to a suit that had abated by operation of law. Once a suit abates, it ceases to exist in the eyes of the law and there is nothing to which a party can be joined.

Legal principles established

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  • Where no application for substitution of a deceased party is made within one year, the suit abates as against that party by operation of law, and any judgment delivered thereafter is null and void.
  • Upon the death of a donor, a Power of Attorney is extinguished by operation of law, though the action survives where not personal in nature under Order 24.
  • A court has no jurisdiction to join a legal representative to a suit where there is no suit pending, the suit having abated by operation of law.

Court orders

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  1. 1.The application dated 31st July, 2023 allowed only to the extent that the judgment entered on 28th April 2022 and the consequent decree and orders are set aside
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 80
  • Civil Procedure Rules 2010Order 9 Rule 9; Order 10 Rule 11; Order 12 Rule 2(a); Order 24 Rules 1, 3, 4(1), 4(3); Order 42 Rule 6(1)(2); Order 45 Rule 1; Order 51 Rule 1
  • Constitution of Kenya 2010Articles 40, 159, 159(2)(d)
  • Environment and Land Court ActSections 18 and 19

Cases cited (11)

  • Suleiman Murunga v Nilestar Holdings Limited & Another
    [2015] eKLR
  • Sylvester Nthenge v Johnstone Kiamba Kiswili
    [2021] eKLR
  • Shanzu Investment Ltd v Commissioner for Lands
    Civil Appeal No. 100 of 1993
  • Aggrey Swaka Waswa v Patrick Omonge Khaemba; Thomas Meshack Omonge & 3 others (Proposed Respondents)
    [2020] eKLR
  • Said Sweilem Gheithan Saabnum v Commissioner of Lands (Being sued through the Attorney General and 5 Others
    [2015] eKLR
  • Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi
    [2012] eKLR
  • James Ndonyu Njogu v Muriuki Macharia
    [2020] eKLR
  • Century Oil Trading Company Ltd v Kenya Shell Limited
    Nairobi (Milimani) HCMCA No. 1561 of 2007
  • Patel v E.A Cargo Handling Services Ltd
    (1974) EA 75
  • James Kanyita Nderitu & Another
    [2016] eKLR
  • Kenya Farmers Cooperative Union Limited v Charles Murgor (deceased) t/a Kaptabei Coffee Estate
    [2005] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 24, Order 45 and Order 51 of the Civil Procedure Rules 2010

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, "Philip Kimutai Langat p/a Kiplangat Arap Maina v Maina; Bet (Being the Legal Representative of the Estate of Kibet Arap Maina alias Job Kibet Maina - Deceased) (Interested Party) (Environment & Land Case 100 of 2005) [2024] KEELC 1525 (KLR)", Case Analysis (2024). Notice of Motion dated 31st July, 2023 (arising from Kericho Civil Suit No. 100 of 2005; suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1525/eng@2024-03-21

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