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ELCPartially AllowedNotice of motion dated 3/10/2022 in originating summons dated 25/10/2012 (suit transferred to Thika ELC on 23/1/2017)· [2024] KEELC 1557 (KLR)

Kenya African National Traders & Farmers Union (Suing through its office bearers Kimani Wanyoike (Chairman), Peter Mugeka Maina (Secretary General) and Ibrahim Wanene (Treasurer)) v Kilonzo (Sued as the administrator of the Estate of Zephania Kilungu Kilonzo) & 9 others (Environment & Land Case 18 of 2017) [2024] KEELC 1557 (KLR)

Environment and Land Court
29 February 2024
BEB M Eboso
2,103 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court revived a decade-old land claim against a deceased defendant, ruling that ignorance of who the personal representative was justified the delay.

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 Thika (B M Eboso, J) on a notice of motion dated 3/10/2022 by the plaintiff, the Kenya African National Traders & Farmers Union, seeking substitution of the deceased 1st defendant, Zephania Kilungu Kilonzo, and revival of the claim against him in an adverse possession suit commenced by originating summons in 2012. The deceased died on 16/5/2018; an earlier application dated 8/2/2021 was rejected because no personal representative was identified. A subsequent application was allowed in 2022 but set aside on 2/10/2023 after the administrator, David Muthama Kilonzo, showed he had not been served, directing that the application dated 3/10/2022 be heard afresh - the subject of this ruling. The administrator opposed, contending the suit land was not part of the estate, the estate had been fully distributed, and the application was an abuse of process. The court framed a single issue: whether sufficient cause was shown for substitution and revival under Order 24 rules 4 and 7 of the Civil Procedure Rules, applying the Court of Appeal decision in Joseph Gachuhi Muthanji v Mary Wambui Njuguna. Noting that the grant issued only on 25/8/2020, after abatement, that the plaintiff's ignorance of the administrator was uncontroverted, and that a prior attempt at substitution had been made, the court allowed the motion in terms of prayers 2 and 3, with costs in the cause.

Key legal issues

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Whether sufficient cause was shown to warrant substitution and revival of the claim against the deceased 1st defendant

Holding

Sufficient cause was demonstrated: the plaintiff did not know the deceased's personal representative, the grant was issued after the claim had abated, and a prior abortive substitution attempt had been made

Reasoning

The court found the applicant's explanation that it was unaware of the deceased's personal representative uncontroverted. The grant to David Muthama Kilonzo issued on 25/8/2020, after the 12-month period had lapsed, so no omission by the plaintiff caused the abatement. A prior application dated 8/2/2021 had been rejected on a technicality without consideration of merits. The court concluded the claim could still be effectually adjudicated.

p. 5

Legal principles established

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  • A party seeking revival of an abated suit under Order 24 rule 7(2) must demonstrate sufficient cause preventing timely substitution within the 12-month period

Court orders

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  1. 1.The notice of motion dated 3/10/2022 is allowed in terms of prayers 2 and 3 (substitution of David Muthama Kilonzo for the deceased 1st defendant and revival of the suit against the 1st defendant)
  2. 2.Costs of the application shall be in the cause
Jurisdiction invoked
Discretionary jurisdiction under Order 24 rules 4(1), 4(3) and 7 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, "Kenya African National Traders & Farmers Union (Suing through its office bearers Kimani Wanyoike (Chairman), Peter Mugeka Maina (Secretary General) and Ibrahim Wanene (Treasurer)) v Kilonzo (Sued as the administrator of the Estate of Zephania Kilungu Kilonzo) & 9 others (Environment & Land Case 18 of 2017) [2024] KEELC 1557 (KLR)", Case Analysis (2024). Notice of motion dated 3/10/2022 in originating summons dated 25/10/2012 (suit transferred to Thika ELC on 23/1/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1557/eng@2024-02-29

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