[2014] KEHC 284 (KLR)
The court found that the applicant is the legal representative of the deceased plaintiff and that the cause of action survives the deceased. The delay in filing the application was explained as due to lack of funds, and the respondent did not oppose the application. In the circumstances, the court exercised its...
Source-derived case information.
- Citation
- [2014] KEHC 284 (KLR)
- Parties
- Plaintiff: Catherine Nkriote Zakayo; Defendant: Stephen Marete; Defendant: Joseph Muriithi Marete
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 43 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Plaintiff Due to Death
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Substitution of Parties, Extension of Time, Survival of Cause of Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Nkriote Zakayo
Plaintiff
Stephen Marete
Defendant
Joseph Muriithi Marete
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Plaintiff Due to Death
Legal Issues
- 1 Whether the applicant should be substituted as plaintiff in place of the deceased.
- 2 Whether time for substitution should be extended.
- 3 Whether the cause of action survives the deceased plaintiff.
Ratio Decidendi
The court found that the applicant is the legal representative of the deceased plaintiff and that the cause of action survives the deceased. The delay in filing the application was explained as due to lack of funds, and the respondent did not oppose the application. In the circumstances, the court exercised its discretion to allow the substitution of the plaintiff and to extend the time for making the application, finding no prejudice would be occasioned to the respondent.
Court Disposition
application allowed
Orders
- Time for substitution of plaintiff is extended.
- Applicant is substituted as plaintiff in place of the deceased.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
HCC NO. 43 OF 2008
CATHERINE NKIROTE ZAKAYO....................PLAINTIFF
VERSUS
STEPHEN MARETE...............................1ST DEFENDANT
JOSEPH MURIITHI MARETE................2ND DEFENDANT
R U L I N G
This application is dated 5th May, 2014 and seeks orders that:
A. The Honourable court be pleased to extend time for the applicant to be substituted as plaintiff instead of the deceased.
B. The honourable court be pleased to substitute the plaintiff who is deceased with the applicant who is her legal representative.
C. The honourable court be pleased to make any other orders as may meet the ends of justice.
D. Costs be provided for.
It is premised upon the following grounds:-
A. The cause of action herein survives plaintiff
B. The applicant is the legal representative of the deceased plaintiff
C. The applicant filed this application late due to lack of money to institute it.
D. No prejudice to the respondent in application granted
When the parties came to court for directions on 1. 10. 2014, the respondent told the court that he was not opposed to the application. In the circumstances, I allow the application.
Costs shall be in the cause.
Delivered in Open Court at Meru on 1st October, 2014 in the presence of:
Cc. Daniel/Lilian
Kiambi h/b Kiogora For Defendant
Gichunge h/b Kimathi Kiara for Plaintiff
P. M. NJOROGE
JUDGE