[2017] KEHC 7387 (KLR)
The court found that the plaintiff's death in December 2015 and the subsequent delay in substitution or prosecution of the suit resulted in abatement. The plaintiff's advocates failed to take necessary steps to substitute the deceased plaintiff or to prosecute the matter for over a year. The court was not satisfied...
Source-derived case information.
- Citation
- [2017] KEHC 7387 (KLR)
- Parties
- Plaintiff: Albert M’Mbogo; Defendant: Co-operative Bank of Kenya; Defendant: R.M. Ngutu t/a Nguru Auctioneer
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 32 of 2017
- Procedural Posture
- Land and Environment Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution and abatement
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Abatement of Suit, Order 17 Rule 2, Succession and Substitution, Delay in Prosecution
- 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
Albert M’Mbogo
Plaintiff
Co-operative Bank of Kenya
Defendant
R.M. Ngutu t/a Nguru Auctioneer
Defendant
Procedural Posture
Land and Environment Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules.
- 2 Whether the suit has abated due to the death of the plaintiff and lack of substitution.
Ratio Decidendi
The court found that the plaintiff's death in December 2015 and the subsequent delay in substitution or prosecution of the suit resulted in abatement. The plaintiff's advocates failed to take necessary steps to substitute the deceased plaintiff or to prosecute the matter for over a year. The court was not satisfied with the explanation for the delay, noting that the requirements of Order 17 Rule 2(1) and Order 24 of the Civil Procedure Rules had not been met. Consequently, the court held that the suit had abated and that there was no sufficient cause shown to prevent dismissal for want of prosecution. The suit was therefore dismissed and costs awarded to the defendants.
Court Disposition
suit dismissed for want of prosecution and abatement
Orders
- The suit is dismissed.
- Costs are awarded to the defendants.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
CHUKA ELC CASE NO 32 OF 2017
FORMRLY MERU ELC CASE NO.49 OF 2014
ALBERT M’MBOGO…………………………….....…..PLAINTIFF
VERSUS
CO-OPERATIVE BANK OF KENYA…..…....….1ST DEFENDANT
R.M. NGUTU T/A NGURU AUCTIONEER……..2ND DEFENDANT
RULING
1. Parties were issued with a notice to come to court on 21. 2.2017 to show cause why this suit should not be dismissed for want of prosecution in terms of Order 17 Rule 2(1) of the Civil Procedure Rules.
2. M/S Rimita addressed the court on behalf of the Plaintiff.
4. Mr. Kaimba represented the two defendants.
4. M/S Rimita told the court that the parties had complied with Order 11 of the Civil Procedure Rules. She told the court that the plaintiff’s demise in December, 2015 had caused delay in prosecution of the case in view of the fact that the plaintiff had a large family and it needed to agree on who should represent him in the suit. She told the court that the family had agreed on a representation and had on 25. 10. 2016 filed Succession Cause No. 8 of 2016 at CM’s Court, Chuka.
5. Mr. Kaimba told the court that upon being informed by the plaintiff’s advocates that he had died, they wrote to the advocates on 17. 12. 2015 seeking some document to confirm that the plaintiff had died so that they could inform the 1st defendant, their client. He told the court that they got no reply.
6. Mr. Kaimba continued to tell the court that they wrote another letter on 29. 1.2016. They received a letter dated 2. 2.2016 which informed them that the plaintiff’s advocates had confirmed with a neighbour of the plaintiff that he had died. Mr. Kaimba told the court that they received no other communication from the plaintiff’s advocates until they received the notice to show cause why this suit should not be dismissed for want of prosecution.
7. Mr Kaimba urged the court to dismiss this suit as one year had elapsed since any step had been taken to prosecute the case. Mr Kaimba also told the court that the suit had abated.
8. I agree with the defendant’s advocate that this suit has abated.
9. I find that the parties have not shown to the satisfaction of this court why this suit should NOT be dismissed.
10. This suit is dismissed.
11. Costs are awarded to the defendants.
12. It is so ordered.
Delivered in open court at Chuka this 13th day of March, 2017 in the presence of:
CA: Ndegwa
Miss Mbaikiata for the plaintiff
Defendant or Advocate Absent
P. M. NJOROGE
JUDGE