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ELCAllowedNot stated in the judgment (ELC suit, Naivasha; consolidated-pending with Nairobi ELC No. E094 of 2023)· [2024] KEELC 7346 (KLR)

Kamau v Director General, Kenya Agricultural and Livestock Research Organisation & another (Environment & Land Case 26 of 2024) (Environment and Land) [2024] KEELC 7346 (KLR)

Environment and Land Court
7 November 2024
4,570 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a lawsuit does not die when the person who filed it passes away — heirs can revive it, even late, if they lacked authority to continue it in time.

What this practically means

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Executive summary

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The deceased plaintiff instituted a suit in 2017 seeking a permanent injunction against trespass onto Land Registration No. 4358, removal of barriers, and general damages. She died on 30th October 2021 and, no application for substitution having been made within one year, the suit abated by operation of law on 31st October 2022. Her legal representative, James Gathogo Kamau, who obtained letters of administration intestate on 21st December 2022 in Ruiru Magistrates Court Succession Cause No. E101 of 2022, applied by Notice of Motion dated 8th May 2024 for extension of time, substitution, revival of the suit, and leave to amend the Plaint. The 1st Defendant opposed, contending that Kimani Kiarie & Associates were improperly on record for failing to seek leave under Order 9 Rule 9, that the application was an impermissible omnibus application, and that the applicant was guilty of laches. The court framed two issues: whether the firm on record was properly on record, and whether the suit should be revived with substitution. Holding that abatement is not a judgment on the merits, does not extinguish title, and does not operate as res judicata, the court found Order 9 Rule 9 inapplicable to abated suits and the incoming firm properly on record. Finding want of letters of administration during the one-year period to be sufficient cause under Order 24 Rule 7(2), the court revived the suit, substituted the legal representative, allowed 14 days to file an amended Plaint, and ordered costs in the cause.

Key legal issues

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01

Whether the incoming firm Kimani Kiarie & Associates was properly on record under Order 9 Rule 9 after the suit had abated

Holding

The court held Order 9 Rule 9 contemplates change of advocates after judgment, not abatement; since abatement is not a judgment, the firm was properly on record.

Reasoning

The court reasoned that abatement does not amount to a judgment on the merits, does not extinguish title, and does not operate as res judicata. An abated suit is merely in a state of suspended animation capable of revival. Since Order 9 Rule 9 applies only to changes effected after judgment has been passed, the requirement for leave did not apply where a suit has abated. Accordingly, the Notice of Change of Advocates filed on 19th February 2024 was effective and the objection that the firm was improperly on record failed.

p. 6
02

Whether time should be extended and the abated suit revived with substitution of the deceased plaintiff's legal representative

Holding

The court extended time, revived the suit and substituted James Gathogo Kamau as the plaintiff's legal representative.

Reasoning

Applying Order 24 Rules 3 and 7(2) and the three-stage framework in Said Sweilem Gheithan Saanum, the court found the applicant was legally incapacitated for want of letters of administration (obtained 21st December 2022) when the suit abated on 31st October 2022, which constituted sufficient cause. The 1st Defendant did not dispute this. As it was in the interest of justice that the suit be determined on the merits, the court revived the suit and ordered substitution, with leave to file an amended Plaint within 14 days.

p. 8

Legal principles established

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  • An abatement of a suit is not a judgment on the merits and does not extinguish the plaintiff's title or create res judicata.
  • An abated suit is in a state of suspended animation and can be revived by order of the court.
  • The court may, for good reason, extend time for substitution of a deceased plaintiff's legal representative and revive an abated suit upon sufficient cause.
  • Want of letters of administration during the one-year substitution period constitutes sufficient cause under Order 24 Rule 7(2).
  • Proceedings and orders made after abatement, other than in relation to the revival application, are of no effect.

Court orders

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  1. 1.This suit is hereby revived
  2. 2.The deceased Plaintiff is substituted with her legal representative Mr. James Gathogo Kamau
  3. 3.The Plaintiff to file and serve an amended Plaint to reflect the substitution within 14 days of delivery of the ruling
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159
  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure RulesOrder 24 Rules 3(1), 3(2), 4(3), 7(1) & 7(2)
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (9)

  • Attorney General v Law Society of Kenya & another
    [2013] eKLR
  • Mbaya Nzalwa v Kenya Power & Lighting Co. Ltd
    [2018] eKLR
  • S.K Tarwadi v Veronica Muehlmann
    [2019] eKLR
  • Daniel Ngetich v K-Rep Bank Limited
    [2013] eKLR
  • Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 others
    [2015] eKLR
  • M'mboroki M'arangacha v Land Adjudication Officer, Nyambene and 2 others
    Meru H.C.C. Application No.45 of 1997
  • KFC Union v Charles Murgor (Deceased)
    NBI HCCC No.1671 of 1994
  • MacFoy v United Africa Co. Limited
    (1961) 3 All ER 1169
  • Kelly v. Rochelle
    93 South W.R 164
Jurisdiction invoked
Article 159 of the Constitution of Kenya 2010; Sections 1A, 1B & 3A of the Civil Procedure Act; Order 24 Rule 7(2) and Order 51 Rule 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, "Kamau v Director General, Kenya Agricultural and Livestock Research Organisation & another (Environment & Land Case 26 of 2024)  (Environment and Land) [2024] KEELC 7346 (KLR)", Case Analysis (2024). Not stated in the judgment (ELC suit, Naivasha; consolidated-pending with Nairobi ELC No. E094 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7346/eng@2024-11-07

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