Kinuthia v Kinuthia & another (Environment and Land Miscellaneous Application 181 of 2016) [2025] KEELC 1194 (KLR)
The bottom line
#A Kenyan court struck out a motion because the respondents had died years earlier and no one with legal authority represented them, so the case collapsed.
What this practically means
#Executive summary
#Key legal issues
#Whether Mbuthia Kinyanjui & Co Advocates had locus standi to act for the deceased Respondents
The firm had no locus; the Respondents were deceased at the time instructions were allegedly issued, and no grant of letters of administration had been taken out by the daughter-in-law who gave instructions, so all representation and pleadings are a nullity
The court accepted that the Respondents died in 1998 and 2001, yet the Notice of Appointment dated 12th February, 2019 purported to be by the living Respondents. Counsel claimed instructions from a daughter-in-law of the 1st Respondent, but no evidence showed she had obtained a limited or full grant. Without a grant she had no capacity to instruct, and suits must be prosecuted by living parties or through legal representatives. All actions by the firm, including the present Motion, are therefore void ab initio and moot.
Whether the suit has abated for failure to substitute the deceased Respondents
The suit abated automatically as against the 1st Respondent in December 1999 and the 2nd Respondent in June 2001, one year after each death, because no application for substitution under Order 24 Rule 4 was made
Order 24 of the Civil Procedure Rules requires that upon the death of a sole or surviving defendant, the legal representative be made a party on application; if no application is made within one year, the suit abates. The Applicant's 1989 application was never pursued by substitution after the deaths. Abatement flows automatically from the effluxion of time, and an abated suit ceases to exist in the eye of the law, leaving no live matter for the court's jurisdiction.
Whether the court could exercise jurisdiction over the Motion dated 3rd May, 2023
No; the court raised the jurisdiction question suo moto, and since there was no proper representation and the suit had abated, there was no live matter before it
Citing Owners of Motor Vessel 'Lillian S', the court reiterated that jurisdiction is everything and a court acting without jurisdiction acts in vain. The court may satisfy itself on jurisdiction suo moto. With the Respondents deceased, unrepresented by any grant-holding legal representative, and the suit abated by operation of law, no live controversy remained on which the Motion to set aside the proceedings of 22nd February, 2023 could be entertained.
Legal principles established
#- Suits must be prosecuted by and against living parties; a deceased person can only sue or be sued through a legal representative holding a grant of letters of administration, and representation without one is a nullity
- Abatement of a suit under Order 24 Rule 4(3) occurs automatically by operation of law upon expiry of one year without an application for substitution; it is not a declaration made by the court
- The effect of an abated suit is that it ceases to exist in the eye of the law
Court orders
#- 1.The firm of Mbuthia Kinyanjui & Co Advocates have no locus to represent the Respondents and all their pleadings and representations on behalf of the Respondents are void ab initio; resultantly, the present motion is struck out
- 2.This suit is marked as having abated
- 3.Each party shall bear their own costs
- Jurisdiction invoked
- Original civil jurisdiction; court raised the jurisdiction question suo moto, citing John K. Malembi v Trufosa Cheredi Mudembei & 2 others [2019] eKLR and Order 24 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinuthia v Kinuthia & another (Environment and Land Miscellaneous Application 181 of 2016) [2025] KEELC 1194 (KLR)", Case Analysis (2025). Not stated in the judgment text supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1194/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.