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)
The bottom line
#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
#Executive summary
#Key legal issues
#Timeliness of substitution application
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
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.
Capacity of legal representatives to seek substitution
The Limited Grant Ad Litem clothed the applicants with capacity to apply for substitution, contrary to the plaintiff's contention
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.
Costs of the applications
Although costs normally follow the event, justice required costs of the applications to await the outcome of the suit
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.
Legal principles established
#- An application for substitution of a deceased party filed before the expiry of one year from death prevents abatement of the suit
Court orders
#- 1.The applicants' notice of motion dated 25th November 2015 allowed; applicants substituted for the 1st defendant, deceased
- 2.The application dated 18th September 2018 marked spent and overtaken by events
- 3.Costs in the applications to abide the outcome of the suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.