[2003] KEHC 710 (KLR)
The court found that although there was a delay in bringing the application for substitution, the delay was explained by the applicant's lack of letters of administration at the material time. The court determined that the suit was not incompetent, as it was originally filed in 1989 and only transferred to the High...
Source-derived case information.
- Citation
- [2003] KEHC 710 (KLR)
- Parties
- Applicant: Nephat Muchiri Wagachau; Plaintiff: Apufia Wangari Muraguri; Defendant: David Wanjohi Muraguri
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 165 of 1993
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time and Substitution of Parties
- Outcome
- application granted
- Legal Topics
- Extension of Time, Substitution of Parties, Abatement of Suit, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nephat Muchiri Wagachau
Applicant
Apufia Wangari Muraguri
Plaintiff
David Wanjohi Muraguri
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time and Substitution of Parties
Legal Issues
- 1 Whether the applicant should be granted extension of time to apply for substitution as plaintiff after abatement of the suit.
- 2 Whether the applicant is the appropriate person to be substituted in place of the deceased plaintiff.
- 3 Whether the suit is incompetent for having been filed after the death of the plaintiff.
Ratio Decidendi
The court found that although there was a delay in bringing the application for substitution, the delay was explained by the applicant's lack of letters of administration at the material time. The court determined that the suit was not incompetent, as it was originally filed in 1989 and only transferred to the High Court in 1993, contrary to the respondent's assertion that it was filed after the plaintiff's death. The applicant, having obtained the necessary letters of administration, was deemed the appropriate person to be substituted as plaintiff. The court exercised its discretion in favour of the applicant, holding that the interests of justice required the matter to proceed,...
Court Disposition
application granted
Orders
- Leave is granted to the applicant to be substituted as plaintiff in place of the deceased Apufia Wangari Muraguri.
- Costs in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
HIGH COURT CIVIL CASE NO. 165 OF 1993
APUFIA WANGARI MURAGURI ……………………………………. PLAINTIFF
VERSUS
DAVID WANJOHI MURAGURI …………………………………… DEFENDANT
R U L I N G
By an application dated 2nd December 2002 Nephat Muchiri Wagachau hereinafter referred to as the Applicant seeks extension of time for filing of his prayer to be substituted in place of the plaintiff Apufia Wangari Muraguri who is said to have died on 13th February 1992. No application for substitution having been made within one year the suit has abated hence the need for leave. The Applicant has obtained letters of administration ad colligenda bona to the estate of the plaintiff for purpose of prosecuting this suit.
The application is strongly opposed on the ground that there has been inordinate delay in bringing it which delay has not been
explained. It is also contended that the suit is incompetent the same having been filed in 1993 after the death of the deceased plaintiff. Finally it is submitted that the Defendant died on 24/6/2001 and no substitution having been made the suit cannot continue.
On the competence of this suit it is apparent from the court record that the plaintiff filed the suit in the lower court in 1989 as Nyahururu SRMCC 362 of 1989. By an order made by Hon. Tunoi J. (as he then was) on 29th January 1992, this suit was transferred to this court and registered as HCCC 165 of 1993. It is not therefore correct that the suit was filed in 1993. On the delay in bringing this application, it is evident that an attempt was made within reasonable time to have the Applicant substituted but the application hit a snag as the Applicant had not yet obtained letters of administration. The claim herein involves land and it is only fair that this court exercises its discretion in the Applicants favour so that the court can be able to properly arbitrate on the matter.
I have noted the objection that was raised earlier that the Applicant may not be the appropriate person to be substituted in place of the plaintiff however in view of the letters of administration already granted to the applicant. He is the appropriate person to be substituted.
On the fact that the Defendant is deceased, action can only be taken in this regard after this application is dealt with only then can the plaintiff be able to move with regard to substitution of the Defendant (i.e. if there is no move from the defence side). For all the aforestated reasons I find that it is only fair and just that I do exercise my discretion in the applicant’s favour. The application is accordingly granted and leave issued as prayed. Costs in the cause. Orders accordingly,
Dated signed and delivered at Nyeri this 5th day of December 2003.
H. M. OKWENGU
JUDGE