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ELRCDismissedNot stated in judgment· [2014] KEELRC 1272 (KLR)

Joseph K. Muli & 9 others v Deutsche Gesellschaft Fur Technische Zusammenardeit GMBH, GTZ – International Services (GTZ - IS [2014] KEELRC 1272 (KLR)

High Court of Kenya
29 May 2014
MOMaureen Onyango
938 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If a plaintiff dies, Kenyan courts require a substitute to be appointed within one year — miss that deadline and the entire claim dies with them.

What this practically means

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Executive summary

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By a notice of motion dated 30th May 2013, Gerald Muli Kiseve and Rose Nyambura Njaria, the legal representatives of the estates of Joseph K. Muli (1st Plaintiff, deceased 5th January 2010) and Charles Kihoro Kahiga (7th Plaintiff, deceased 13th December 2009), sought to be joined as plaintiffs in place of the deceased. Both obtained letters of administration ad litem in early 2013 and sought to pursue the deceased plaintiffs' claims. The respondent opposed, submitting that under Order 24 Rule 3(2) of the Civil Procedure Rules, 2010, the claims abated one year after the deaths, that the court lacked jurisdiction over abated claims, and that no application for extension of time had been made nor any reason given for the delay. The respondent cited numerous High Court authorities supporting abatement. The court held that substitution must occur within one year, with the proviso allowing extension of time only on application and for good reason. No application for extension had been made; even if presumed from the joinder application, the applicants' delay of over two years in obtaining grants and moving the court was unexplained. The court found the claims of the 1st and 7th Claimants abated on 5th January 2011 and 13th December 2010 respectively, leaving no claim to which the applicants could be enjoined. The applications were dismissed with costs in the cause, on 29th May 2014 before Lady Justice Maureen Onyango in Nairobi.

Key legal issues

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01

Abatement of claim for failure to substitute deceased plaintiff within one year

Holding

The claims of the 1st and 7th Plaintiffs abated on 5th January 2011 and 13th December 2010 respectively, one year after their deaths, because substitution was not effected within the one-year period

Reasoning

Order 24 Rule 3(2) requires substitution of a deceased plaintiff within one year, failing which the claim abates. Both plaintiffs died in 2009/2010 and the applicants only obtained limited grants and moved the court in 2013, more than two years later. No application for extension of time was made, and no reason was advanced for the inordinate delay, so the proviso could not be invoked.

p. 3
02

Discretion to extend time for substitution after abatement

Holding

The court has discretion to extend time under the proviso to Rule 3(2), but the applicants made no formal application for extension and gave no reason for the delay, so the discretion could not be exercised in their favour

Reasoning

The proviso to Order 24 Rule 3(2) permits extension of time on application and for good reason. Here there was no such application; even assuming the joinder application could be read as one, the applicants delayed over two years in obtaining letters of administration ad litem and moving the court, and that inordinate delay was not explained, warranting dismissal.

p. 3

Legal principles established

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  • Substitution of a deceased plaintiff must be effected within one year of death, failing which the claim abates, unless the court extends time on application for good reason
  • Where a claim has abated, there is no surviving cause of action to which a proposed substitute plaintiff may be joined

Court orders

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  1. 1.The applications to enjoin the applicants as 1st and 7th Plaintiffs in place of the deceased plaintiffs are dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 1A(1)
  • Civil Procedure Rules, 2010Order 24 Rule 3(2) and proviso
  • Civil Procedure Rules, 2010Rule 24
  • Civil Procedure Rules, 2010Rule 3(1)
  • Constitution of Kenya, 2010Article 159(d)

Cases cited (9)

  • Camilo Duranti v M/s Alamin & D.T.K Ltd
    High Court of Kenya at Mombasa Civil Case No.7 of 1993
  • Kenya Farmers Co-operative Union Limited v Charles Murgor (deceased t/a Kaptabei Coffee Estate
    (2005) eKLR
  • Wallace Kinuthia v Anthony Ndungu Muongi & 3 Others
    (2013) eKLR
  • Titus Kiragu v Jackson Mugo Mathai & Another
    (2013) eKLR
  • Rotich Cherutich & 3 others v The Director of Surveyors
    (2013) eKLR
  • Shirji Builders v Ogada
    LLR No.5359 (HCK)
  • Benjamin Sipitali Mungwana v Norah Khaoya Shem & 2 others
    (2005) eKLR
  • Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others
    (2013) eKLR
  • Fredrick Mwangi Nyaga v Garam Investment & Another
    (2013) eKLR
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act and Rules 3(1) and 24 of the Civil Procedure Rules, 2010

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, "Joseph K. Muli & 9 others v Deutsche Gesellschaft Fur Technische Zusammenardeit GMBH, GTZ – International Services (GTZ - IS [2014] KEELRC 1272 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1272/eng@2014-05-29

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