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ELCDismissedELC Misc No. 1 of 2017

Lawrence Muriithi M’thika & 3 others v Munyi Murwathika & another [2021] KEELC 44 (KLR)

High Court of Kenya, Environment and Land Court
30 November 2021
AKA.K. Kaniaru
4,033 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Four plaintiff brothers sued the deceased 1st defendant (their elder brother) and the 2nd defendant over parcel Ngandori/Ngovio/838, seeking a declaration that the land is family land held in customary trust, nullification of the 1st defendant's registration, and cancellation of the title of the 2nd defendant, to whom the 1st defendant had exchanged the land, reverting it for distribution per Embu Land Disputes Tribunal Case No. 136 of 2007, whose award had been adopted in Embu Award No. 7 of 2008. The 1st defendant died in 2016 without substitution, and the suit was defended by the 2nd defendant, who claimed a bona fide exchange of his 10-acre parcel plus Kshs. 2,340,000 for the suit land after due diligence and land control board consent. The court identified abatement as the decisive issue: under Order 24 rule 4 of the Civil Procedure Rules, the suit against the 1st defendant automatically abated one year after his death since no substitution application was made. Relying on Wallace Kinuthia, Said Sweilen Gheitan Saanum and Jacob Githinji Kamau, the court held that the abated suit ceased to exist in law, rendering evidence against the deceased valueless. Since the plaintiffs' case against the 2nd defendant depended entirely on proving trust and fraud against the 1st defendant, and neither was proved, the 2nd defendant's denial assumed cogency. The suit against the 2nd defendant was dismissed with each side bearing its own costs.

Questions the Court framed

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

  1. 1.Whether the suit against the 1st defendant abated upon his death without substitution under Order 24 rule 4 of the Civil Procedure Rules
  2. 2.Whether the 1st defendant held parcel Ngandori/Ngovio/838 in customary trust for the plaintiffs
  3. 3.Whether the transfer/exchange of the suit land to the 2nd defendant was fraudulent
  4. 4.Whether the plaintiffs' claim can be sustained against the 2nd defendant

Key legal issues

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01

Abatement of suit on death of 1st defendant without substitution

Holding

The suit against the 1st defendant automatically abated in 2017, one year after his death, as no application for substitution was made under Order 24 rule 4

Reasoning

Order 24 rule 4 of the Civil Procedure Rules requires an application for substitution of a deceased defendant within one year, failing which the suit abates against the deceased. No such application was made here. The court endorsed the abatement on 28/7/2020. The consequence is that the suit against the deceased ceased to exist in the eye of the law.

p. 3
02

Whether the plaintiffs proved customary trust and fraud against the 2nd defendant

Holding

No; trust and fraud were the gravamen of the suit, and failure to prove them against the 1st defendant meant the claim against the 2nd defendant necessarily failed

Reasoning

The plaintiffs' claim was founded on proof of a customary trust held by the 1st defendant; the prayer for cancellation of the 2nd defendant's title depended on proving that trust. The abatement meant nothing was proved against the 1st defendant, so the 2nd defendant's denial of trust and fraud assumed cogency. Though particulars of fraud were pleaded, no proof was offered at hearing.

p. 4

Legal principles established

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  • A suit abates by operation of law where no substitution is made within one year of the death of a defendant
  • The effect of abatement is that the suit ceases to exist in law and no action can be sustained against the deceased
  • Evidence given against a deceased defendant after abatement has no evidentiary value

Court orders

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  1. 1.The plaintiffs' suit against the 2nd defendant is dismissed
  2. 2.Each side to bear its own costs

The bench

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

AK
majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act (suit transferred from Kerugoya ELC No. 405 of 2013)

Relief refused

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Declaration that Ngandori/Ngovio/838 is family land held in trust

The suit against the 1st defendant abated on his death without substitution, so the trust claim against him ceased to exist and was not proved

p. 4

Nullification of the 2nd defendant's title and reversion of the land

Neither trust nor fraud was proved; no evidence supported the alleged fraud in the transfer to the 2nd defendant

p. 4

Costs

Each side to bear its own 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 end result is that the plaintiffs have not proved their case against 2 nd defendant and the same is hereby dismissed. Each side to bear its own costs.
p. 4Final orders - dismissal and costs
The effect of an abatement of suit is that no action can be sustained or pursued against the deceased.
p. 3Effect of abatement
Any evidence given amounted to no more than a sweet story. No competent court of law would assign any value to such evidence against the deceased first defendant.
p. 4Evidentiary value of testimony against a deceased party after abatement
It was a fatal blunder on the part of the plaintiffs to allow their case against the 1st defendant to rest at the stage of abatement.
p. 4Consequence of failure to substitute deceased defendant

Issues in the judgment

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minor

Discrepant consideration figures for the land exchange as given by DW1 and DW2

minor

Inconsistent deposit/balance figures in defence evidence

minor

Suit titled 'ELC MISC NO. 1 OF 2017' yet conducted and disposed of as a full trial of a plaint-based suit

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, "Lawrence Muriithi M’thika & 3 others v Munyi Murwathika & another [2021] KEELC 44 (KLR)", Case Analysis (2021). ELC Misc No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/44/eng@2021-11-30

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