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ELCOtherThika ELC Case No 1 of 2020· [2024] KEELC 4570 (KLR)

Githunguri v Githunguri & another (Environment & Land Case 1 of 2020) [2024] KEELC 4570 (KLR)

Environment and Land Court
3 June 2024
BEB M Eboso
691 words in judgment
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The bottom line

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A Kenyan court confirmed that if a party to a lawsuit dies and no substitution is made within one year, both the claim and any counterclaim automatically die.

What this practically means

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Executive summary

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The court was asked to determine whether the defendants' counterclaim survived the death of the plaintiff, Stanley Munga Githunguri, who died on 29/11/2022. Counsel for the defendants acknowledged that no substitution had been made under Order 24 of the Civil Procedure Rules and that the plaintiff's primary claim had abated, but argued that the counterclaim remained live. Counsel for the plaintiff's estate agreed that the primary claim abated but contended that the counterclaim abated equally. The court held that a counterclaim is a distinct suit sharing the same cause number as the primary claim, and that the substitution framework in Order 24 rules 3 and 4 applies where a defendant to a counterclaim dies. Rule 4(3) provides that a suit abates where no substitution application is made within one year. Since the late Githunguri was the defendant in the counterclaim brought by Rosemary Wanjiku Githunguri and Serah Njoki Maina, and no substitution order was made, the counterclaim abated on 29/11/2023, as did the primary claim. In the absence of any application for enlargement of time, substitution or revival, the court marked the cause as abated and the file as closed. Judgment delivered virtually at Thika on 3 June 2024 by B M Eboso J.

Key legal issues

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01

Whether a defendant's counterclaim abates upon the death of the plaintiff, who is the defendant to the counterclaim, in the absence of substitution

Holding

The counterclaim abated on 29/11/2023, twelve months after the death of Stanley Munga Githunguri, because no substitution was effected under Order 24 rule 4

Reasoning

The court reasoned that a counterclaim is a distinct suit sharing the same cause number as the primary claim. Order 24 rule 4, which governs death of a defendant, applies to a defendant to a counterclaim. Where no application for substitution is made within one year, the suit abates. Since the plaintiff died on 29/11/2022 and no substitution occurred, both the primary claim and the counterclaim abated on 29/11/2023.

p. 2

Legal principles established

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  • A counterclaim is a distinct suit within the same cause number, and Order 24 rules 3 and 4 on abatement upon death without substitution apply to a counterclaim
  • Where no substitution application is made within one year of death, the suit or counterclaim abates

Court orders

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  1. 1.The cause is marked as abated
  2. 2.The case file is marked 'case closed'

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 3
  • Civil Procedure RulesOrder 24 rule 4
Jurisdiction invoked
Order 24 rules 3 and 4 of the Civil Procedure Rules

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, "Githunguri v Githunguri & another (Environment & Land Case 1 of 2020) [2024] KEELC 4570 (KLR)", Case Analysis (2024). Thika ELC Case No 1 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4570/eng@2024-06-03

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