[2020] KEELC 1407 (KLR)
The court held that the suit against the 3rd respondent abated upon his death, as no application for substitution was made within the time prescribed by Order 24 Rule 4(3) of the Civil Procedure Rules. The mere filing of a succession citation to bring a legal representative on record does not prevent abatement; a...
Source-derived case information.
- Citation
- [2020] KEELC 1407 (KLR)
- Parties
- Petitioner: Berano M’Mwithiga M’Arauki; Respondent: District Land Adjudication & Settlement Officer Tigania East and West; Respondent: The Hon. Attorney General; Respondent: Peter Imathiu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 5 of 2014
- Procedural Posture
- Constitutional Petition / Ruling on Abatement Due to Death of Party
- Outcome
- Suit against 3rd respondent marked as abated.
- Legal Topics
- Abatement of Suit, Death of Party, Succession Citation, Revival of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Berano M’Mwithiga M’Arauki
Petitioner
District Land Adjudication & Settlement Officer Tigania East and West
Respondent
The Hon. Attorney General
Respondent
Peter Imathiu
Respondent
Procedural Posture
Constitutional Petition / Ruling on Abatement Due to Death of Party
Legal Issues
- 1 Whether the suit against the 3rd respondent should be marked as abated following his death.
- 2 Whether the filing of a succession citation affects the abatement of the suit against the deceased respondent.
- 3 Whether any orders should be made regarding the other respondents at this stage.
Ratio Decidendi
The court held that the suit against the 3rd respondent abated upon his death, as no application for substitution was made within the time prescribed by Order 24 Rule 4(3) of the Civil Procedure Rules. The mere filing of a succession citation to bring a legal representative on record does not prevent abatement; a formal application for revival of the suit is required even after a grant is obtained. The court declined to make any orders regarding the other respondents at this stage, limiting its ruling to the abatement of the suit against the 3rd respondent.
Court Disposition
Suit against 3rd respondent marked as abated.
Orders
- The suit against the 3rd respondent is marked as abated.
- No orders made regarding the other respondents at this stage.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
PETITION 5 OF 2014
BERANO M’MWITHIGA M’ARAUKI...............................................PETITIONER
VERSUS
DISTRICT LAND ADJUDICATION &
SETTLEMENT OFFICER TIGANIA EAST AND WEST..............1ST RESPONDENT
THE HON. ATTORNEY GENERAL...........................................2ND RESPONDENT
PETER IMATHIU.......................................................................3RD RESPONDENT
RULING
1. On 25. 6.2020 counsel for the 3rd respondent requested this court to mark the case against 3rd respondent as abated since their client died on 14. 4.2018. Counsel for petitioner averred that they have already filed a succession citation no. 63 of 2019 which was to be heard on 23. 4.2020 but due to covid pandemic it was not heard.
2. Counsel for the 1st and 2nd respondents avers that their client should also be exonerated as they have no interest in the matter.
3. On 13. 5.2019, this court was informed that the 3rd respondent died on 14. 4.2018. In terms of order 24rule 4 (3) of the Civil Procedure Rules, the suit against that party has abated. It matters not that the petitioner has filed a citation to bring a representative of 3rd respondent on board this suit. The fact remains that there is no suit hence even with a grant a revival of the suit would be necessary.
4. I desist from making any orders regarding the case against the other respondents at this stage.
5. In the circumstances the suit against 3rd respondent is marked as ABATED.
DATED, SIGNED AND DELIVERED AT MERU THIS 14TH DAY OF JULY, 2020
HON. LUCY. N. MBUGUA
ELC JUDGE
ORDER
The date of delivery of this ruling was given on 25. 6.2020 in the presence of advocates for the parties. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.
HON. LUCY N. MBUGUA
ELC JUDGE