[2015] KEHC 1342 (KLR)
The court found that the plaintiffs failed to provide evidence of the 1st defendant's death or proof that the proposed substitute had legal capacity to represent the deceased's estate. No death certificate or grant of letters of administration was produced. As such, the court declined to grant the application for...
Source-derived case information.
- Citation
- [2015] KEHC 1342 (KLR)
- Parties
- Plaintiff: Chari Mwadime; Plaintiff: Rachael Nyasi Makoko Kimbio; Defendant: Caleb Nyende; Defendant: Jubilee Insurance Co. Ltd; Defendant: William Mbukuli Nyende
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 158 of 2014
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Substitution and Striking Out Party
- Outcome
- Application for substitution refused; suit against 2nd defendant withdrawn and name struck out; costs to 2nd defendant.
- Judges
- RE Aburili
- Legal Topics
- Substitution of Parties, Abatement of Suit, Withdrawal of Suit, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chari Mwadime
Plaintiff
Rachael Nyasi Makoko Kimbio
Plaintiff
Caleb Nyende
Defendant
Jubilee Insurance Co. Ltd
Defendant
William Mbukuli Nyende
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Substitution and Striking Out Party
Legal Issues
- 1 Whether the plaintiffs have provided sufficient evidence to substitute the 1st defendant with the proposed legal representative.
- 2 Whether the suit against the 2nd defendant Jubilee Insurance Co. Ltd should be withdrawn and the name struck out.
- 3 Whether the 2nd defendant is entitled to costs upon withdrawal.
Ratio Decidendi
The court found that the plaintiffs failed to provide evidence of the 1st defendant's death or proof that the proposed substitute had legal capacity to represent the deceased's estate. No death certificate or grant of letters of administration was produced. As such, the court declined to grant the application for substitution. However, the court allowed the plaintiffs to withdraw the suit against the 2nd defendant, Jubilee Insurance Co. Ltd, and ordered that the name be struck out from the proceedings. The 2nd defendant was awarded costs for the withdrawn suit.
Court Disposition
Application for substitution refused; suit against 2nd defendant withdrawn and name struck out; costs to 2nd defendant.
Orders
- Application for substitution of 1st defendant is declined and struck out.
- Leave granted to withdraw suit against 2nd defendant Jubilee Insurance Co. Ltd.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 158 OF 2014
CHARI MWADIME & RACHAEL NYASI MAKOKO KIMBIO
(Both suing as Personal representatives of the estate of
JANET M. MWADIME……………………………….…….PLAINTIFFS
VERSUS
(The administrators of the estate of
CALEB NYENDE…………………………………...…..1ST DEFENDANT
JUBILEE INSURANCE CO.LTD…………..……...........2ND DEFENDANT
WILLIAM MBUKULI NYENDE (Sued as the personal
Representative of the estate of CALEB NYENDE...........DEFENDANT
COURT RULING
The plaintiff’s application dated 24th March 2015 seeks for substitution of the 1st defendant Caleb Nyende with William Mbukuli Nyende who is said to be the personal representative of the estate of the deceased Caleb Nyende. It also seeks for striking out of the 2nd defendant Jubilee Insurance Company Limited from these proceedings.
In addition, the plaintiffs seek for leave to serve the new proposed defendant by way of advertisement in the newspaper. The application is supported by the joint affidavit of the plaintiffs herein and grounds on the face of the application. The said application is not opposed by the 2nd defendant save for costs.
I have carefully considered the application by the plaintiffs, the grounds and depositions as well as submissions by counsel for the applicants Miss Irungu.
For an application to substitute a deceased party, there must be evidence of that party being dead, and also evidence that the person who is sought to be substituted is a legal/personal representative of the estate of the deceased party. Capacity to sue and be sued is a legal franchise, not based on the existing relationship of affinity or consaquinity.
In addition, Order 24 of the Civil Procedure Rules is clear that where a party to proceedings dies and there is no application to substitute that party within one year of the date of death, the suit abates, notwithstanding the provisions for revival. In this case it is alleged that the 1st defendant is dead and that his father, the proposed substitute took out letters of administration and was paid his son’s benefits. However, there is no deposition or evidence as to when the said defendant died. No death certificate has been exhibited and neither has the plaintiffs annexed any grant of letters of administration whether limited or otherwise, giving the proposed substitute capacity to be substituted in the place of the deceased defendant.
This court cannot issue orders in darkness.
In the premise, the application for substitution of the 1st defendant cannot be granted and I decline the same and strike it out.
I however grant leave to the plaintiff to withdraw suit against the 2nd defendant Jubilee Insurance Company Limited and order the name thereof to be struck out.
The 2nd defendant shall have costs of the withdrawn suit.
Orders accordingly.
Dated, signed and delivered in open court this 1st October 2015
R.E. ABURILI
JUDGE