[2018] KEELC 4379 (KLR)
The court found that the plaintiff's advocate failed to comply with the court's order to file an application for substitution of the deceased plaintiff within thirty-one days. There was no evidence provided to support the claim that the advocate was engaged in another matter at the time of the hearing. The plaintiff...
Source-derived case information.
- Citation
- [2018] KEELC 4379 (KLR)
- Parties
- Plaintiff: Amos Munyao Mukua; Defendant: J. Mutua Munyao; Defendant: Peter Mukua Munyao; Defendant: Muia Munyao; Defendant: Mutisya Munyao
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 86 of 2005
- Procedural Posture
- Notice of Motion / Ruling on Application for Reinstatement After Dismissal for Want of Prosecution
- Outcome
- application dismissed; suit stands dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Abatement of Suit, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amos Munyao Mukua
Plaintiff
J. Mutua Munyao
Defendant
Peter Mukua Munyao
Defendant
Muia Munyao
Defendant
Mutisya Munyao
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Reinstatement After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution.
- 2 Whether the failure to substitute the deceased plaintiff within the prescribed period caused the suit to abate.
- 3 Whether the plaintiff's advocate provided sufficient justification for non-attendance.
Ratio Decidendi
The court found that the plaintiff's advocate failed to comply with the court's order to file an application for substitution of the deceased plaintiff within thirty-one days. There was no evidence provided to support the claim that the advocate was engaged in another matter at the time of the hearing. The plaintiff died on 10th September, 2015, and no substitution was made, causing the suit to abate by operation of law. Consequently, the application for reinstatement was dismissed, and the suit remained dismissed for want of prosecution and abatement.
Court Disposition
application dismissed; suit stands dismissed
Orders
- The application dated 24th May, 2017 is dismissed with no order as to costs.
- The suit stands dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO.86 OF 2005
AMOS MUNYAO MUKUA..........................PLAINTIFF
VERSUS
J. MUTUA MUNYAO.........................1ST DEFENDANT
PETER MUKUA MUNYAO..............2ND DEFENDANT
MUIA MUNYAO.................................3RD DEFENDANT
MUTISYA MUNYAO.........................4TH DEFENDANT
RULING
1. In the Notice of Motion dated 24th May,2017, the Plaintiff is seeking for the following orders:
a. That this suit be reinstated and fixed for hearing.
b. That the costs of this Application be in the cause.
2. The Application is premised on the grounds that the suit was dismissed for non-attendance; that counsel for the Plaintiff was attending to another matter before Kemei J. and that by the time counsel proceeded to this court, the matter had already been dismissed for non-attendance.
3. According to the Affidavit of the Plaintiff’s advocate the Plaintiff herein passed on after tendering evidence.
4. The Defendants have not opposed the Application.
5. The record shows that the suit was dismissed on 24th May, 2017 for want of prosecution.
6. This suit was slated for hearing of a notice to show cause why it should not be dismissed for want of prosecution on 30th March, 2017.
7. On the said date, the Plaintiff’s advocate informed the court that the Plaintiff had passed on. The Plaintiff’s counsel was directed by the court to file an Application to substitute the Plaintiff within thirty one (31) days. The court fixed the matter for hearing on 24th May, 2017.
8. On the said date, neither the Plaintiff nor the Defendants’ advocates were in court. Indeed, the record shows that the file was placed aside until 10:30a.m, and when the advocates did not appeared, the court dismissed the matter.
9. The Plaintiff’s counsel had deponed that when the matter came up for hearing, he was in the High Court. There is no evidence before me to show that the Plaintiff’s advocate had a matter on the same day this matter was coming up in the High Court.
10. Even if the Plaintiff’s advocate was in the High Court on 24th May, 2017, this file was placed aside until 10:30a.m. By that time, counsel would have mentioned his matter in the High Court and then attended to this matter.
11. In any event, the Plaintiff’s advocate did not comply with the orders of the court to file an Application substituting the Plaintiff within thirty one (31) days. Considering that the Plaintiff died on 10th September, 2015, the suit has since abated.
12. I therefore dismiss the Application dated 24th May, 2017 with no order as to costs.
13. The suit stands dismissed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF MARCH, 2018.
O.A. ANGOTE
JUDGE