[2003] KEHC 719 (KLR)
The court found that the application for substitution of the legal representative was not made within the required one-year period following the death of the plaintiff. As a result, the suit abated by operation of law, and the court lacked jurisdiction to grant the orders sought, including substitution and...
Source-derived case information.
- Citation
- [2003] KEHC 719 (KLR)
- Parties
- Plaintiff: Anna Ngunju; Defendant: Njogu Nguvu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1458 of 1977
- Procedural Posture
- Civil Case / Ruling on Substitution and Injunction Application
- Outcome
- application dismissed
- Legal Topics
- Substitution of Parties, Abatement of Suit, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anna Ngunju
Plaintiff
Njogu Nguvu
Defendant
Procedural Posture
Civil Case / Ruling on Substitution and Injunction Application
Legal Issues
- 1 Whether the applicant, as administrator of the deceased plaintiff's estate, should be substituted as plaintiff in the suit.
- 2 Whether the beneficiaries should be allowed to reside in the suit premises pending determination.
- 3 Whether the respondent should be restrained from evicting or interfering with the applicant and beneficiaries.
Ratio Decidendi
The court found that the application for substitution of the legal representative was not made within the required one-year period following the death of the plaintiff. As a result, the suit abated by operation of law, and the court lacked jurisdiction to grant the orders sought, including substitution and injunctive relief. The application was therefore dismissed as incompetent.
Court Disposition
application dismissed
Orders
- The application for substitution and injunctive relief is dismissed for being incompetent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO.1458 OF 1977
ANNA NGUNJU ……………………………..PLAINTIFF
V E R S U S
NJOGU NGUVU ……………………………DEFENDANT
R U L I N G
This is an application by way of Chamber Summons dated 1st October 2001 made under Section 3A of the Civil Procedure Act and Orders 23 rr 1 & 3 (1) and Order 39 r1 of the Civil Procedure Rules asking that applicant be substituted instead of the deceased plaintiff. That beneficiaries b e allowed to reside in the suit premises, that the respondent be restrained from evicting or interfering with the applicant and the beneficiaries pending the hearing and determination. Supporting affidavit dated 1st October 2001 by Francis Wachira Murage says that he holds grant of administration of the Estate of the plaintiff and should be substituted.
He says that he lives in the same premises with two sisters and that defendant seeks to evict them against the injunctive order on 26th October 1983 of this court. In reply the defendant by affidavit dated 8th March 2000 says that the applicant is a stranger to the case and that the named sisters and the applicants are not beneficiaries. That the applicant is a grandson of the deceased but had lived with his mother away from the estate.
I have heard both counsel Mr. Nguru and Mr. Ongway for applicant and respondent respectively and I think there should be no dispute that Francis Wachira Murage has obtained letters of administration. There ought to have been application to substitute the legal representative within 1 year from 15th April 2001. This should have been done under Order 23 r 1&2 and if not done the suit abated on 16th April 2002. If that be the position then these orders cannot be issued in the case. I therefore dismiss this application for being incompetent.
Delivered on 30th day of January 2003.
A. I. HAYANGA
J U D G E
Read to Mr. Maina holding brief for Mr. Nguru
A. I. HAYANGA
J U D G E