Kimitei (Suing as the Legal Representative of the Estate of Nyongio Kimitei) v Mitei & 5 others (Environment & Land Case 36 of 2019) [2025] KEELC 4145 (KLR)
The bottom line
#A Kenyan court refused to revive a land lawsuit because the family delayed over a year after getting authority, and the lawyer swore the affidavit instead of the family representative.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate with no party capacity can swear a supporting affidavit in a contentious application
The affidavit sworn by the advocate was defective; the proposed legal representative, Kenneth Kipkoech Korir, should have sworn it himself
The court drew on authorities including Republic v Nairobi City County Government ex-parte Mike Sonko and Oyugi v Law Society of Kenya holding that an advocate should not depone to disputed evidentiary facts, being liable to cross-examination and unable to be both counsel and witness. Rule 8 of the Advocates (Practice) Rules, 1966 bars an advocate appearing where he may be required as a witness. The advocate also failed to identify who the applicant was, the plaintiff being deceased.
Whether sufficient cause was shown to revive the abated suit and extend time for substitution
No sufficient cause was shown; the delay was inordinate and unexplained, so the application failed
The plaintiff died on 1st September 2022 and the suit could only abate on 30th August 2023. The limited grant ad litem was issued on 22nd March 2023 while the suit was still alive, yet the application was not filed until 12th January 2024. The explanation that the family took time to appoint a representative was found incorrect since the grant issued within six months, leaving ample time before abatement.
Legal principles established
#- An applicant seeking to revive an abated suit must show that he was prevented by sufficient cause from continuing the suit
- A suit abates by operation of law upon expiry of one year after a plaintiff's death where no substitution is made
Court orders
#- 1.The Notice of Motion dated 12th January, 2024 is dismissed with costs to the 1st Defendant
- Jurisdiction invoked
- Order 24 rule 7(2) of the Civil Procedure Rules and section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimitei (Suing as the Legal Representative of the Estate of Nyongio Kimitei) v Mitei & 5 others (Environment & Land Case 36 of 2019) [2025] KEELC 4145 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4145/eng@2025-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.