[2021] KEELC 708 (KLR)
The court held that under Order 24 rule 4 of the Civil Procedure Rules, substitution of a deceased defendant must be made within one year of death, and there is no provision for extension of time beyond this period. Since the defendant died over two years prior and no application for revival of the suit was made by...
Source-derived case information.
- Citation
- [2021] KEELC 708 (KLR)
- Parties
- Applicant: Penina Mwarania Gichunge (Suing as the administrator of the estate of the late Jacob Gichunge Mucheke); Respondent: Stanley Mwaa M’Aluma (deceased); Respondent: Janet Nkatha; Respondent: Jane Kathoni
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 119 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Enlargement of Time and Substitution of Parties After Death of Defendant
- Outcome
- application dismissed; suit abated and file closed
- Legal Topics
- Adverse Possession, Limitation of Actions, Substitution of Parties, Abatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Penina Mwarania Gichunge (Suing as the administrator of the estate of the late Jacob Gichunge Mucheke)
Applicant
Stanley Mwaa M’Aluma (deceased)
Respondent
Janet Nkatha
Respondent
Jane Kathoni
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Enlargement of Time and Substitution of Parties After Death of Defendant
Legal Issues
- 1 Whether the court can enlarge time for substitution of a deceased defendant beyond the one-year period prescribed under Order 24 rule 4 of the Civil Procedure Rules.
- 2 Whether the suit had abated as against the deceased defendant and the effect of such abatement.
- 3 Whether the applicants, as proposed legal representatives of the deceased defendant, could be substituted in the absence of an application for revival of the suit.
Ratio Decidendi
The court held that under Order 24 rule 4 of the Civil Procedure Rules, substitution of a deceased defendant must be made within one year of death, and there is no provision for extension of time beyond this period. Since the defendant died over two years prior and no application for revival of the suit was made by the plaintiff, the suit had abated as against the deceased defendant. The applicants, as proposed legal representatives of the deceased defendant, could not seek substitution or extension of time in the absence of a subsisting suit or an application for revival by the plaintiff. The court found the application to be without merit and dismissed it, marking the suit as abated and...
Court Disposition
application dismissed; suit abated and file closed
Orders
- The application for enlargement of time and substitution is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC (O.S.) 119 OF 2016
IN THE MATTER OF SECTION 38 OF THE LIMITATION OF ACTION ACT CAP 22 LAWS OF KENYA
AND
IN THE MATTER OF SECTION 28 (h) OF THE LAND REGISTRATION ACT NO. 3 OF 2012
AND
IN THE MATTER OF A CLAIM FOR TITLE BY ADVERSE POSSESSIONOVERL.R. ITHIMA/NTUNENE/596
BY PENINA MWARANIA GICHUNGE(Suing as the administrator of theestate of the late
JACOB GICHUNGE MUCHEKA (Deceased)
PENINA MWARANIA GICHUNGE (Suing as the administrator of the estate of the late
JACOB GICHUNGE MUCHEKE (Dcd)...................................................................APPLICANT
VERSUS
STANLEY MWAA M’ALUMA................................................................................RESPONDENT
RULING
1. The court is urged to enlarge time for the appointment of Janet Nkatha and Jane Kathoni in place of Stanley Mwaa M’Alumaas defendants who passed on 7. 2.2019.
2. It is averred the proposed parties are wives of the deceased, who stay apart, and elders had to be involved to bring them together and agree to petition for letters of grant ad litem which took time until 16. 9.2021. The applicant has not filed any response to this application.
3. Order 24 rule 4 of the Civil Procedure Rules provides where a defendant passes on and a cause of action survives or continues, the court on an application shall cause a legal representative of the deceased defendant to be made a party and if the application is not made within a year, the suit shall abate as against the deceased defendant with implications as provided under Order 24 rule 6.
4. Unlike Order 24 rule 3, Order 24 rule 4 has no provision for extension of time as regards a deceased defendant. The substitution has to be made within one year and not after one year.
5. In construing this provisions the Court of Appeal in Rebecca Mijide Mungola & Another –vs- Kenya Power & Lighting Co. Ltd & 2 Others [2017] eKLRheld that once a suit abates, no fresh suit can be brought on the same cause of action because it is extinguished.
6. The suit has abated as against the deceased defendant. The plaintiff had the duty to seek to cite the legal representatives of the deceased: There is no application by the plaintiff as to whom the suit belongs to revive the it, it has already abated as against the deceased defendant. It would therefore be premature for the applicants to seek for an extension of time to be substituted when no suit exists against them in the first instance.
7. The application is brought underOrder 24 rule 3 (1) yet the applicants are acting for the deceased defendant and not the plaintiffs. They cannot purport to make the application on behalf of the plaintiff. The deceased defendant did not file a counterclaim against the originating summons.
8. Even if there was a counterclaim in Charles Mutambi Gacheri –vs- Attorney General & Another [2015] eKLR the court dismissed such a request for inordinate delay. The defendant herein passed on over two years ago. The plaintiff has taken no action at all to bring on board the deceased defendant legal representatives.
9. In sum I find the application lacking merits. The same is dismissed with no order as to costs. This suit has abated and the file is marked closed.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 24TH DAY OF NOVEMBER, 2021
In presence of:
No appearance for parties
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE