Kigunda v Marushi & 4 others (Environment & Land Case 69 of 2017) [2024] KEELC 7490 (KLR)
The bottom line
#A Kenyan court refused to kill a long-running land suit, confirming that late substitution of a deceased party can still be excused.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit abated under Order 24 rule 3 for non-substitution within one year of the plaintiff's death
The objection fails because an application for substitution was filed on 4/6/2018 and allowed on 18/3/2019, so the factual premise of abatement is false; in any event the court may extend time under the proviso
The court found as fact that the application dated 30/5/2018, filed 4/6/2018, sought substitution of John Githi Kigunda with Jonathan Karuga Kigunda and was allowed on 18/3/2019. The objection therefore rested on a fallacy. Independently, Order 24 rule 3(2) proviso empowers the court to extend time even after the one-year period, and the court, citing its ruling of 2/12/2021, preferred sustaining a land suit to dismissing it unheard.
Whether the court lacks jurisdiction over an abated suit
Not reached on the facts; the suit had not abated and the objection was dismissed with costs
Having found that substitution had been effected by the order of 18/3/2019 and that the court retained discretion to extend time, the jurisdictional limb of the objection collapsed. The court also observed that parties' serial applications since 2010 had delayed the expeditious conclusion of the suit on merit.
Legal principles established
#- Under Order 24 rule 3(2) proviso, the court has discretion to extend time even where an application to substitute a deceased party is made more than a year after death
- Courts prefer sustaining suits on their merits over dismissing them, especially in land disputes
Court orders
#- 1.The preliminary objection/motion dated 15/10/2021 is dismissed
- 2.Costs of the motion awarded to the respondent
- Jurisdiction invoked
- Original civil jurisdiction over a land suit; objection raised under Order 24 rule 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kigunda v Marushi & 4 others (Environment & Land Case 69 of 2017) [2024] KEELC 7490 (KLR)", Case Analysis (2024). Not stated in judgment (suit pending since 8/12/2010; preliminary objection dated 15/10/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7490/eng@2024-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.