[2021] KEELRC 1912 (KLR)
The court found that although the application for substitution was filed outside the one-year period prescribed by the Civil Procedure Rules, the delay was satisfactorily explained by the time taken to obtain letters of administration, a process outside the applicants' control. The court exercised its discretion...
Source-derived case information.
- Citation
- [2021] KEELRC 1912 (KLR)
- Parties
- Claimant: Carey Francis Onyango; Respondent: Maseno University; Applicant: Elizabeth Opiyo Awino Rapemo; Applicant: Florence Akeyo Awino
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 205 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Revival and Substitution After Claimant's Death
- Outcome
- application allowed
- Legal Topics
- Revival of Suit, Substitution of Parties, Extension of Time, Letters of Administration
- 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
Carey Francis Onyango
Claimant
Maseno University
Respondent
Elizabeth Opiyo Awino Rapemo
Applicant
Florence Akeyo Awino
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Revival and Substitution After Claimant's Death
Legal Issues
- 1 Whether the court should revive the claimant's cause after abatement due to death.
- 2 Whether the applicants should be granted leave to substitute the deceased claimant.
- 3 Whether the time for substitution should be enlarged beyond the statutory period.
Ratio Decidendi
The court found that although the application for substitution was filed outside the one-year period prescribed by the Civil Procedure Rules, the delay was satisfactorily explained by the time taken to obtain letters of administration, a process outside the applicants' control. The court exercised its discretion under Order 24 Rule 2 to revive the suit and allow substitution, holding that justice would be best served by enabling the matter to proceed on its merits. The court directed the applicants to file and serve an amended statement of claim within 21 days.
Court Disposition
application allowed
Orders
- The motion dated 21 January 2019 is allowed.
- The applicants are directed to file and serve an amended statement of claim within the next 21 days.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 205 OF 2018
CAREY FRANCIS ONYANGO.......................................CLAIMANT
VERSUS
MASENO UNIVERSITY..............................................RESPONDENT
AND
ELIZABETH OPITO AWINO RAPEMO
FLORENCE AKEYO AWINO....................................APPLICANTS
RULING
1. For determination is a Motion dated 21 November 2019 by Elizabeth Opiyo Awino Rapemo and Florence Akeyo Awino (the applicants) seeking orders:
1. THAT the Honourable Court be pleased to reinstate and/or revive the Claimant's cause.
2. THAT the Honourable Court be pleased to enlarge the time within which to substitute the deceased Claimant.
3. THAT the Honourable Court be pleased to grant leave for the Claimant to be substituted by Elizabeth Opiyo Awino Rapemo and Florence Akeyo Awino.
5. THAT costs of the application be provided for.
2. The Respondent filed Grounds of Opposition on 29 November 2019.
3. When the Motion was placed before the Court on 13 February 2020, the Respondent sought more time to file a replying affidavit. The replying affidavit was filed on 26 February 2020.
4. The applicant filed submissions on 26 June 2020. The Respondent had filed its submissions on 26 February 2020.
5. The Court has considered the application, affidavits and submissions.
6. The Claimant in this Cause died on 28 June 2018.
7. Under Order 24 Rule 1 of the Civil Procedure Rules, a suit does not abate merely because the Claimant has died. Such is the scenario where the cause of action survives.
8. To continue with the suit, a legal representative of the deceased should move the Court within 1-year to be made a party. Otherwise, the suit abates.
9. However, order 24 Rule 2 of the Civil Procedure Rules gives the Court the discretion to extend the time to make the legal representative a party to the suit.
10. The applicants’ herein filed their application outside the prescribed 1-year, and the explanation given was that letters of administration were only granted on 12 July 2019.
11. The grant of letters of administration after the Court has been moved is ordinarily out of the control of the Petitioners. It is within the public knowledge that gazettement of the Petition also takes time. The gazetting authority is not under the direction or supervision of the judiciary or the parties.
12. The Court is satisfied that this is a suitable case to exercise its discretion in favour of the applicants in order to do justice.
13. The Motion dated 21 January 2019 is allowed, and the applicants are directed to file and serve an amended Statement of Claim within the next 21 days.
14. Costs in the cause.
Delivered through Microsoft teams, dated and signed in Nairobi on this 31st day of March 2021.
Radido Stephen, MCIArb
Judge
Appearances
For applicants Orego & Odhiambo Advocates
For Respondent Owiti, Otieno & Ragot Advocates
Court Assistant Chrispo Aura