Benjamin Barasa Wafula v Plaintiffs and Others (Amended Notice of Motion dated 26th February 2024)
The bottom line
#The Environment and Land Court in Kakamega dismissed a land dispute application, ruling you cannot substitute deceased parties in a case that has abated without first reviving it.
What this practically means
#Executive summary
#Key legal issues
#Whether substitution of deceased parties is permissible where their cases have abated and not been revived
Substitution was impermissible because the Second to Sixth Plaintiffs' cases were marked abated on 14th February 2024 and had not been revived, and no orders could issue against parties who had ceased to be parties.
The court reviewed the record and found that the cases of the Second to Sixth Plaintiffs were marked abated on 14th February 2024 and had not since been revived. Since abatement extinguishes party status, substitution in an abated suit is not possible without first reviving the suit, and no orders can be made against persons who ceased to be parties with effect from the date of abatement.
Whether the court should grant the interlocutory orders sought in the Amended Notice of Motion
The application was dismissed for lack of merit, with the court directing that the parties pursue hearing of the main suit rather than interlocutory applications.
The court noted the matter's long history since filing in the High Court at Bungoma on 7th November 2012 and its transfers between courts. Directions had already been given for paginated trial bundles and the matter scheduled for mention to fix a hearing date. The court held parties must stop filing unnecessary interlocutory applications and have the main suit heard and determined on its merits.
Legal principles established
#- There can be no substitution of a party in an abated suit unless the suit is first revived.
- No orders can be made against parties who ceased to be parties upon abatement of their cases.
Court orders
#- 1.Amended Notice of Motion dated 26th February 2024 dismissed
- 2.Costs in the cause
- Jurisdiction invoked
- Environment and Land Court jurisdiction following transfer by order of Justice O. A. Angote, PJ ELC dated 7th June 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Barasa Wafula v Plaintiffs and Others (Amended Notice of Motion dated 26th February 2024)", Case Analysis (2024). Not stated in the extract (ELC at Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7056/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.