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ELRCDismissedCause No. 2212 of 2012 (Notice of Motion filed 6 December 2016)

Kumaka v Attorney General (Miscellaneous Application 131 of 2016) [2025] KEELRC 961 (KLR)

Employment and Labour Relations Court
27 March 2025
RSRadido Stephen
759 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a substitution application filed after judgment was already delivered, and in the wrong case file.

What this practically means

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Executive summary

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The applicant, Beth Nyambura Kumaka, administrator of the estate of Alexander Kumaka Njau, a deceased plaintiff in Nairobi Cause No. 2212 of 2012 (WO1 Samuel Chege Gitau & Ors v Hon Attorney General), moved the Court on 6 December 2016 seeking substitution of the deceased with herself. The Hon Attorney General filed a Notice of Preliminary Objection arguing the application was incompetent and that the suit had abated under Order 24 Rules 3(2) and 7(1) of the Civil Procedure Rules, 2010. The Motion was adjourned several times and, after none of the parties appeared on 11 February 2025, the Court dismissed it. Counsel for the applicant later appeared and sought its revival. The Court, on reviewing the record, found that judgment in the primary Cause had been delivered on 15 April 2016, before the Motion was filed, and that the applicant had not disclosed this to the Court. It held that Order 24 Rule 7(2), which covers revival of abated suits, had been wrongly invoked and could not aid the applicant, and that the substitution Motion should have been filed in the primary file, as other parties had done according to the CTS system. The Motion was held fatally defective and there was no purpose in vacating the dismissal. The Court dismissed the Motion with no order on costs, delivering the ruling virtually in Naivasha on 27 March 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Motion for substitution of a deceased plaintiff should be entertained in this file or in the primary file (Cause No. 2212 of 2012)
  2. 2.Whether Order 24 Rule 7(2) of the Civil Procedure Rules, 2010 was properly invoked
  3. 3.Whether the order of 11 February 2025 dismissing the Motion should be vacated

Key legal issues

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01

Whether Order 24 Rule 7(2) of the Civil Procedure Rules, 2010 could aid the applicant

Holding

The Rule was wrongly invoked; it covers revival of abated suits and cannot aid an application brought after judgment had already been delivered in the Cause

Reasoning

The Cause had been heard and judgment delivered on 15 April 2016, before the Motion was filed on 6 December 2016. The applicant, being aware of the judgment, did not disclose it to the Court. Order 24 Rule 7(2) applies to revival of abated suits, a scenario not applicable here, so the Rule could not support the substitution Motion.

p. 2
02

Whether the Motion was filed in the correct file

Holding

The substitution Motion should have been filed in the primary file, Nairobi Cause No. 2212 of 2012; the CTS system showed other parties had done so

Reasoning

The court noted that substitution applications by other parties had been filed in the primary file per the CTS system, and counsel's explanation for absence on 28 October 2024 did not cure the defect of filing the Motion in the wrong file. The Motion was therefore fatally defective and there was no utility in vacating its dismissal.

p. 2

Legal principles established

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  • A substitution application under Order 24 Rule 7(2) concerns revival of abated suits and must be filed in the primary suit file; invoking it after judgment has been delivered is a misjoinder of the rule

Court orders

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  1. 1.The Motion filed in Court on 6 December 2016 stands dismissed with no order on costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RS
majority

Wrote the judgment

Jurisdiction invoked
Original employment and labour relations jurisdiction; application under Order 24 Rule 7(2) of the Civil Procedure Rules, 2010

Relief refused

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Substitution of Alexander Kumaka Njau alias Alex Benson Kumaka with Beth Nyambura Kumaka as administrator of the deceased's estate

The application was fatally defective: judgment in the primary Cause had already been delivered before the Motion was filed, Order 24 Rule 7(2) was wrongly invoked, and the Motion should have been filed in the primary file

p. 3

Costs

No order on costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The instant Motion is anchored partly on Order 24 Rule 7(2) of the Civil Procedure Rules, 2010. The Rule covers the revival of abated suits.
p. 2Wrong invocation of Order 24 Rule 7(2)
Despite the applicant’s explanations, the Motion seeking substitution is fatally defective in that it would serve no legal purpose to vacate the order of 11 February 2025 dismissing the Motion.
p. 3Motion fatally defective
The Motion filed in Court on 6 December 2016 stands dismissed with no order on costs.
p. 3Final orders

Issues in the judgment

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minor

Internal date inconsistency: the Motion came up for hearing on 20 February 2017, but the Attorney General's Notice of Preliminary Objection is stated as filed on 18 October 2017, i.e. after the hearing date

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, "Kumaka v Attorney General (Miscellaneous Application 131 of 2016) [2025] KEELRC 961 (KLR)", Case Analysis (2025). Cause No. 2212 of 2012 (Notice of Motion filed 6 December 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/961/eng@2025-03-27

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