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ELCPartially AllowedELC Case at Mombasa (Notices of Motion dated 25th November 2015 & 18th September 2018)· [2024] KEELC 1745 (KLR)

Gicimu (Suing as Personal Representative of the Estate of the late Uwe Kerschek) v Ouya & 2 others; Ogada & another (Applicant) (Environment & Land Case 133 of 2014) [2024] KEELC 1745 (KLR)

Environment and Land Court
11 April 2024
1,470 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 confirmed that a land suit survives a party's death if substitution papers are filed within one year, keeping the estate's estate's heirs in the case.

What this practically means

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Executive summary

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The Environment and Land Court at Mombasa, S. M. Kibunja J, determined two notices of motion dated 25th November 2015 and 18th September 2018, remitted for hearing by a judge other than Omollo J pursuant to the Court of Appeal's judgment in Mombasa CACA No. 64 of 2019. The applicants, legal representatives of the deceased 1st defendant Faith Judith Ouya (died 14th July 2015), sought substitution into the suit concerning LR No. MN/1/5246, plus stay and setting aside of earlier orders and stoppage of further entries on the title. The plaintiff opposed, arguing the suit against the 1st defendant had abated one year after her death without substitution. The court held that the applicants had obtained a Limited Grant Ad Litem on 18th November 2015 and filed their substitution application on 25th November 2015, within one year of death, so the suit had not abated; this accorded with the binding Court of Appeal finding that the pending application vitiated the order of abatement. The court allowed substitution of the 1st defendant by the applicants, marked the 2018 application spent and overtaken by events, and ordered that costs of the applications abide the outcome of the suit. Judgment was virtually delivered on 11th April 2024.

Key legal issues

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01

Timeliness of substitution application

Holding

The substitution application dated 25th November 2015 was filed within one year of the 1st defendant's death on 14th July 2015, so the suit did not abate

Reasoning

The 1st defendant died on 14th July 2015; one year expired on or about 13th July 2016. The applicants obtained a Limited Grant Ad Litem on 18th November 2015 and filed the substitution application on 25th November 2015, well within the year. The Court of Appeal in CACA No. 64 of 2019, binding on this court, held that the pending application vitiated any order declaring the suit abated.

p. 4
02

Capacity of legal representatives to seek substitution

Holding

The Limited Grant Ad Litem clothed the applicants with capacity to apply for substitution, contrary to the plaintiff's contention

Reasoning

The applicants annexed a Special Limited Grant of Letters of Administration issued in Mombasa HC P&A No. 263 of 2015 on 18th November 2015. The court found the grant clothed them with capacity to apply to be substituted for the deceased 1st defendant, rejecting the plaintiff's locus objection based on alleged abatement.

p. 3
03

Costs of the applications

Holding

Although costs normally follow the event, justice required costs of the applications to await the outcome of the suit

Reasoning

Under the Civil Procedure Rules costs follow the event unless the court directs otherwise. The court exercised discretion to order that costs of the applications abide the outcome of the suit, given the suit remains subsisting and the applications were interlocutory in nature.

p. 4

Legal principles established

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  • An application for substitution of a deceased party filed before the expiry of one year from death prevents abatement of the suit

Court orders

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  1. 1.The applicants' notice of motion dated 25th November 2015 allowed; applicants substituted for the 1st defendant, deceased
  2. 2.The application dated 18th September 2018 marked spent and overtaken by events
  3. 3.Costs in the applications to abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure Rulessection 27 (costs)
On appeal from
Court of Appeal
Mombasa CACA No. 64 of 2019
Jurisdiction invoked
Court seized of substitution and review applications under the Civil Procedure Rules following remittal by the Court of Appeal

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, "Gicimu (Suing as Personal Representative of the Estate of the late Uwe Kerschek) v Ouya & 2 others; Ogada & another (Applicant) (Environment & Land Case 133 of 2014) [2024] KEELC 1745 (KLR)", Case Analysis (2024). ELC Case at Mombasa (Notices of Motion dated 25th November 2015 & 18th September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1745/eng@2024-04-11

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