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ELRCDismissedChamber Summons application dated 13/1/2023 (cause not stated in judgment)· [2023] KEELRC 2322 (KLR)

Kiamba v Amazon Motors Limited (Cause 1069 of 2018) [2023] KEELRC 2322 (KLR)

Employment and Labour Relations Court

21 September 2023

MNMathews N. Nduma

1,001 words in judgment

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The bottom line

A Kenyan court cannot substitute a deceased claimant in a suit that has already abated — the family must first apply to revive the suit.

What this practically means

Executive summary

The applicant, holder of letters of administration ad litem granted on 19/7/2022 for the estate of Thomas Mutua Kiamba (a claimant who died on 27/9/2021), sought by Chamber Summons dated 13/1/2023 to be substituted as claimant in the suit, with costs in the cause. The respondent, an advocate conducting the defence, opposed, arguing that the suit had abated by operation of law under Order 24 rule 3(2) of the Civil Procedure Rules since more than one year had passed since the claimant's death, leaving no competent suit for substitution. The court noted that under Order 24 rule 1 the cause of action survived the deceased, but that the substitution application was made over a year after death, when the suit had abated. Applying Julius Gichobi Githaiga v Phillis Wanjiku Njuki, the court held that an abated suit must first be revived on application before substitution can be granted. Although the court has discretion to extend time for good reason, it cannot do so of its own motion absent an application for revival or extension. The application as filed was therefore defective. The court dismissed the substitution application with no order as to costs. The judgment indicates the proper course would have been an application under Order 24 rule 7(2) to revive the abated suit, showing sufficient cause for the delay, before seeking substitution.

Key legal issues

Whether substitution of a deceased claimant can be ordered in a suit that has abated under Order 24 rule 3(2)

Holding

No; the abated suit must first be revived on application before substitution can be considered

Reasoning

The claimant died on 27/9/2021 and the substitution application was filed on 13/1/2023, more than one year later, so the suit had abated by operation of law. Under Order 24 rule 7(2), a legal representative may apply to revive an abated suit on showing sufficient cause. Without such an application, there is no competent suit into which the applicant can be substituted. The application is therefore defective.

p. 3

Whether the court may extend time for substitution suo motu

Holding

No; the discretion to extend time under Order 24 may be exercised only on application by a party

Reasoning

Although Order 24 rule 3(1) and the proviso to rule 1(2) allow extension of time for good reason, the court stressed that it acts only on application. Since the applicant never moved for revival or extension of time, the court could not itself resurrect the abated suit to enable substitution, even where it may be in the interest of justice that the matter be heard on the merits.

p. 3

Legal principles established

A court cannot substitute a deceased party in an abated suit; the suit must first be revived on application before substitution can be granted
The court has discretion to extend time for substitution for good reason, but only on application, not of its own motion

Court orders

1.The application for substitution dated 13/1/2023 is dismissed with no order as to costs

Authorities

Legislation

Civil Procedure RulesOrder 24 rule 1
Civil Procedure RulesOrder 24 rule 1 sub-rule 2
Civil Procedure RulesOrder 24 rule 3(1)
Civil Procedure RulesOrder 24 rule 3(2)
Civil Procedure RulesOrder 24 rule 7
Civil Procedure RulesOrder 24 rule 7 sub-rule (2)

Cases cited (1)

Julius Gichobi Githaiga and Another -vs- Phillis Wanjiku Njuki (Sued as the Administrator of the Estate of Jonathan Njuki Githaiga (Deceased)

Jurisdiction invoked: Inherent power of the court and Order 24 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kiamba v Amazon Motors Limited (Cause 1069 of 2018) [2023] KEELRC 2322 (KLR)", Case Analysis (2023). Chamber Summons application dated 13/1/2023 (cause not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2322/eng@2023-09-21

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