[2015] KEHC 1548 (KLR)
The court found that the plaintiff died on 7th August 2011 and no application for substitution had been made for over four years. The period for substitution under Order 24 rule 3(2) of the Civil Procedure Rules is one year, extendable only on application and for good cause. No such application or explanation was...
Source-derived case information.
- Citation
- [2015] KEHC 1548 (KLR)
- Parties
- Plaintiff: Alice Chepkemoi Buses; Defendant: Elijah Kipkemoi Too; Defendant: National Bank of Kenya Ltd; Defendant: Joseph Kipkemoi Ruto
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Case 9 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Abatement Due to Plaintiff's Death
- Outcome
- suit dismissed as abated due to plaintiff's death and failure to substitute within prescribed period
- Legal Topics
- Abatement of Suit, Substitution of Parties, Effect of Death on Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Chepkemoi Buses
Plaintiff
Elijah Kipkemoi Too
Defendant
National Bank of Kenya Ltd
Defendant
Joseph Kipkemoi Ruto
Defendant
Procedural Posture
Civil Case / Ruling on Application for Abatement Due to Plaintiff's Death
Legal Issues
- 1 Whether the suit should abate due to the death of the plaintiff and failure to substitute within the prescribed period.
Ratio Decidendi
The court found that the plaintiff died on 7th August 2011 and no application for substitution had been made for over four years. The period for substitution under Order 24 rule 3(2) of the Civil Procedure Rules is one year, extendable only on application and for good cause. No such application or explanation was provided. The fact of death was not controverted, and the plaintiff's counsel or family had taken no steps to substitute her. Consequently, the suit had abated by operation of law and was dismissed accordingly.
Court Disposition
suit dismissed as abated due to plaintiff's death and failure to substitute within prescribed period
Orders
- The suit is dismissed as abated by operation of law.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
CIVIL CASE NO. 9 OF 2005
ALICE CHEPKEMOI BUSES....................................PLAINTIFF
VS
ELIJAH KIPKEMOI TOO................................1ST DEFENDANT
NATIONAL BANK OF KENYA LTD..................2ND DEFENDANT
JOSEPH KIPKEMOI RUTO...........................3RD DEFENDANT
RULING
This is the application dated 31st March 2015 by the 1st and 2nd Defendants. The same is supported by the grounds on the face of the application and the supporting affidavit of Stephen Njoroge an employee of the 2nd Defendant.
The advocates for the plaintiff were served with the said application as per the affidavit of service filed by Mr. Kamonjo Kiburi advocate but they did not file any response to it.
They were also not in court when this application came for hearing on 3rd November 2015.
In his supporting affidavit Mr. Njoroge Stephen depones that the plaintiff died over one year ago and no steps have been taken to substitute her.
He has annexed a funeral programme SKN2 in respect of the plaintiff. The programme shows that the plaintiff died on 7th August 2011 10. 30A.M
There is also a letter marked SKN1 dated 8th January 2014 from the 1st and 2nd Defendants counsel to M/s Ojienda & Co. advocates. The letter addresses the delays in this matter and the fact of the plaintiff's death.
There appears to have been no response to it.
The fact of death has not been controverted and I do find that indeed the plaintiff died on 7th August 2011 which is four (4) years three (3) months today.
There is no indication that any steps have been taken by the plaintiff's counsel or family to substitute her. The period provided for under Order 24 rule 3(2) of Criminal Procedure Rule for substitution is one year, which may be extended on application and on good grounds.
My finding is that this suit has abated by operation of the Law. I therefore dismiss it on that account.
There shall be no Order as to costs.
Delivered, Dated and Signed in open Court this 6th day of November 2015
H.I. ONG'UDI
JUDGE.
In the presence of: ( None of the parties).