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High CourtAllowed

Paul Warui & 2 Others v Miriam Muthoni Kinyanjui & 5 Others (Substitution of Deceased Defendant)

High Court of Kenya
4 May 2020
MKMary Kasango
1,223 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A lawsuit against a deceased defendant can be revived by the court if you demonstrate sufficient cause for the delay.

What this practically means

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Executive summary

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Three plaintiffs sued six defendants seeking a declaration that an auction on 26th May 2009, in which the 5th defendant auctioneer sold three charged Nairobi properties to the 2nd to 4th defendants, was wrongful, invalid, null and void, and praying for transfer of the properties to the 1st plaintiff as trustee. The 2nd defendant, Peter Kinyanjui Mukoma, died on 17th June 2013. Under Order 24 Rule 3 of the Civil Procedure Rules the suit abated against him in 2014 because no substitution application was made within one year. The plaintiffs applied on 14th January 2020 to substitute the deceased 2nd defendant with his personal representatives, Miriam Muthoni Kinyanjui, Kenneth Karimi Kinyanjui and Stephen Kamau Kinyanjui. The court noted the anomaly that the deceased defendant's advocate continued attending court until 3rd December 2019, argued a 2010 chamber summons nine years after filing, obtained setting aside of a 2010 interlocutory judgment by consent, and then withdrew a pending substitution application filed by the personal representatives. The court accepted the plaintiffs' explanation that they had withheld their own substitution application to avoid duplication while the personal representatives' application subsisted, finding this sufficient cause under Order 24 Rule 7(2). Although revival was not specifically sought, the court held the interests of justice required revival of the substantially heard suit. The court revived the case against the deceased 2nd defendant, ordered substitution by the three personal representatives, directed them to file and serve their defence within 15 days from 4th May 2020, and ordered costs of the application to be in the cause.

Key legal issues

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01

Substitution of a deceased defendant under Order 24 Rule 4

Holding

The court granted substitution of the deceased 2nd defendant by his personal representatives.

Reasoning

The suit had abated because no substitution application was made within one year of the 2nd defendant's death in June 2013. However, the plaintiffs explained that they had withheld their own substitution application because an application by the deceased's personal representatives was already subsisting on the record until it was withdrawn on 3rd December 2019. This constituted sufficient cause.

p. 2
02

Revival of an abated suit under Order 24 Rule 7(2)

Holding

The court revived the abated suit against the deceased 2nd defendant.

Reasoning

Although revival was not specifically prayed for, the court held that the interests of justice required revival of a substantially heard suit, finding the plaintiffs were prevented by sufficient cause from seeking substitution earlier.

p. 2

Legal principles established

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  • A suit that abates against a deceased defendant under Order 24 Rule 3 may be revived where sufficient cause is shown under Order 24 Rule 7(2).
  • The court may revive an abated suit in the interests of justice even where revival was not specifically sought, provided sufficient cause is established.

Court orders

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  1. 1.The case against the deceased 2nd defendant is hereby revived
  2. 2.Peter Kinyanjui Mukoma, the deceased 2nd defendant, is substituted by Miriam Muthoni Kinyanjui, Kenneth Karimi Kinyanjui and Stephen Kamau Kinyanjui
  3. 3.The said personal representatives shall file and serve their defence within 15 days from 4th May 2020
  4. 4.The costs of the application dated 14th January 2020 shall be in the cause
Jurisdiction invoked
Order 24 Rules 4 and 7(2) of the Civil Procedure Rules

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, "Paul Warui & 2 Others v Miriam Muthoni Kinyanjui & 5 Others (Substitution of Deceased Defendant)", Case Analysis (2020). . Source:

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