Hantooshi & another (Suing as the Personal Representatives of the Estate of the Late Said Karama Hantooshi) v Hantooshi & another; Hantoosh (Applicant) (Environment & Land Case 113 of 2001) [2024] KEELC 6736 (KLR)
The bottom line
#A Kenyan land case was permanently declared dead in court because the claimants waited over five years after the defendant died before asking to continue it against his estate.
What this practically means
#Executive summary
#Key legal issues
#Revival of an abated suit and substitution of a deceased defendant under Order 24
The plaintiffs failed to demonstrate sufficient cause for the delay of over five years in seeking substitution; the abatement stands and revival was refused
The court traced the record: counsel notified the court of the death on 6th November 2018 and promised citation proceedings by 21st March 2019, but neither plaintiffs nor counsel attended the mention of 25th September 2019, when the suit abated. The application of 16th November 2023 came some 5 years and 7 months after death. Following Rebecca Mijide Mungole and Rotich Cherutich, the court held that family disagreements among the deceased's children were a mere excuse and not sufficient cause to extend time, revive the suit and substitute Khalid Swaleh Hantoosh, whose limited grant ad litem had itself lapsed.
Joinder as an interested party to an abated suit
An abated suit is non-existent; with revival refused, there is no suit in which the proposed interested party could be joined
Mohamed Swaleh Karama Hantoosh sought joinder as interested party, stay of proceedings, and striking out of the plaintiffs' revival application. The court held that an abated suit is non-existent and can only be revived under Order 24 Rule 7(2). Having found the revival application unmerited, the suit remains abated; consequently there is no live suit before the court in which the proposed interested party could seek joinder, and his application was struck out.
Costs of the two applications
Despite section 27 of the Civil Procedure Act, the court ordered each party to bear their own costs
Section 27 of the Civil Procedure Act provides that costs follow the event unless otherwise ordered for good cause. The judge, considering the family disputes and the circumstances of both applications, was of the view that justice would better be served by each party bearing their own costs in both applications.
Legal principles established
#- Where no application to substitute a deceased defendant is made within one year of death, the suit abates by operation of law, and revival requires extension of time and demonstration of sufficient cause
- A delay caused by negligence or inaction of the applicant does not constitute sufficient cause for revival of an abated suit
Court orders
#- 1.The plaintiff's application dated 16th November 2023 lacks merit and is dismissed.
- 2.The proposed interested party's application dated 12th February 2024 is struck out.
- 3.Each party bears their own costs in each of the applications.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Civil Procedure Act and Civil Procedure Rules (Order 24 Rules 4 and 7, Order 1 Rules 14 and 15, Order 2 Rule 15(1), Order 51 Rule 1, Sections 1A, 1B, 3A and 27 of the Civil Procedure Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hantooshi & another (Suing as the Personal Representatives of the Estate of the Late Said Karama Hantooshi) v Hantooshi & another; Hantoosh (Applicant) (Environment & Land Case 113 of 2001) [2024] KEELC 6736 (KLR)", Case Analysis (2024). ELC Case (Mombasa) – Notices of Motion dated 16th November 2023 & 12th February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6736/eng@2024-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.