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ELCPartially AllowedELC Suit (formerly Eldoret ELC No. 33 of 2016)· [2024] KEELC 7270 (KLR)

Busienei & 29 others v Kipkeibon Estate Ltd (Environment & Land Case 22 of 2022) [2024] KEELC 7270 (KLR)

Environment and Land Court
31 October 2024
MMM. N. Mwanyale
840 words in judgment
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The bottom line

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When a plaintiff in a Kenyan land case dies, their legal representative must be substituted within one year or the suit automatically dies.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kapsabet determines two interlocutory applications heard simultaneously: a Motion dated 14 November 2017 by the defendant seeking a declaration that the suits of seven deceased plaintiffs had abated, and a Motion dated 8 October 2018 by the plaintiffs seeking to substitute the deceased plaintiffs with their legal representatives holding grants of letters of administration ad litem. The suit, originally filed as Eldoret ELC No. 33 of 2016 by 31 plaintiffs, had been partly resolved through two partial settlement agreements recorded in court-annexed mediation on 12 September 2019 and adopted on 7 October 2019. The defendant, relying on Order 24 Rule 3 and the authorities of Titus Kiragu v Jackson Mugo Mathai and Kenya Farmers' Co-operative Union Ltd v Charles Murgor, argued the suits abated as more than one year had elapsed since the deaths without substitution. Plaintiffs' counsel conceded that in light of the settlements the suit was technically concluded and there was no need to substitute under Order 24 Rule 2. The court dismissed the substitution application on the strength of that concession, and allowed the abatement application, declaring the deceased plaintiffs' suits abated and holding they cannot claim any benefits from the settlement agreements reached without their participation. Costs were ordered to be in the cause.

Key legal issues

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01

Abatement of suit against deceased plaintiffs

Holding

The deceased plaintiffs' suits were declared abated under Order 24 Rule 3(2), more than one year having elapsed without substitution

Reasoning

The defendant applied under Order 24 Rule 3(2) and Order 51(1) on the basis that more than one year had passed since the named plaintiffs died without any substitution. The court found it necessary, for good order, especially given that the 2019 settlement agreements were reached without the deceased plaintiffs or their representatives, to formally declare those suits abated.

p. 2
02

Substitution of deceased plaintiffs by legal representatives

Holding

The substitution application was dismissed following plaintiffs' counsel's concession that there was no need to substitute given the partial settlements

Reasoning

Counsel for the plaintiffs conceded that in view of the two partial settlement agreements the suit was technically concluded and, in accordance with Order 24 Rule 2, there was no need for substitution. The court accepted that the concession disposed of the substitution application, which was dismissed.

p. 2

Legal principles established

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  • Where no application for substitution is made within one year of a plaintiff's death, the suit abates
  • Deceased plaintiffs whose suits have abated cannot claim benefits under settlement agreements reached without their participation

Court orders

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  1. 1.The application dated 8/10/2018 seeking substitution of the deceased plaintiffs is dismissed
  2. 2.All the deceased plaintiffs' suits as captured in the application dated 17/11/2017 and the partial settlement agreement dated 12/09/2019 are declared to have abated
  3. 3.The application dated 14/11/2017 is allowed
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 2
  • Civil Procedure RulesOrder 24 Rule 3(2)
  • Civil Procedure RulesOrder 51(1)

Cases cited (2)

  • Titus Kiragu vs Jackson Mugo Mathai and another
    HCCC 1616 of 1985
  • Kenya Farmers’ Co-operative Union Limited vs Charles Murgor t/a Kaptabei Coffee Estate
Jurisdiction invoked
Order 24 Rule 3(2) and Order 51(1) 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, "Busienei & 29 others v Kipkeibon Estate Ltd (Environment & Land Case 22 of 2022) [2024] KEELC 7270 (KLR)", Case Analysis (2024). ELC Suit (formerly Eldoret ELC No. 33 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7270/eng@2024-10-31

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