[2014] KEHC 4333 (KLR)
The court held that since the original suit (SRMCC 437/00) had abated, any application for revival must be made within that abated suit and not in the appellate proceedings. The application for revival and substitution filed in the appellate court was therefore incompetent. The court agreed with the respondent's...
Source-derived case information.
- Citation
- [2014] KEHC 4333 (KLR)
- Parties
- Appellant: Cresent Transporters Co. Ltd.; Respondent: John Munyao Kisolo (suing for and on behalf of the estate of James Mativo Munyu)
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 68 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Revival and Substitution
- Outcome
- application struck out with costs
- Judges
- BT Jaden
- Legal Topics
- Abatement of Suit, Revival of Suit, Substitution of Parties
- 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
Cresent Transporters Co. Ltd.
Appellant
John Munyao Kisolo (suing for and on behalf of the estate of James Mativo Munyu)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Revival and Substitution
Legal Issues
- 1 Whether the application for revival and substitution can be entertained in the current proceedings.
- 2 Whether substitution can be carried out in a non-existent (abated) suit.
- 3 Whether the application for revival was filed in the correct court.
Ratio Decidendi
The court held that since the original suit (SRMCC 437/00) had abated, any application for revival must be made within that abated suit and not in the appellate proceedings. The application for revival and substitution filed in the appellate court was therefore incompetent. The court agreed with the respondent's submissions and struck out the application with costs, emphasizing that substitution cannot occur in a non-existent suit and that the proper procedure was not followed.
Court Disposition
application struck out with costs
Orders
- The application dated 18/12/2012 is struck out with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. 68 OF 2007
CRESENT TRANSPORTERS CO. LTD. ……….. APPELLANT
VERSUS
JOHN MUNYAO KISOLO(suing for and on behalf of the estate ofJAMES MATIVO MUNYU)………………….……… RESPONDENT
************************************
(Before B. Thuranira Jaden J)
R U L I N G
The application dated 18/12/2012 seeks the following orders:-
“That the Plaintiff’s suit be revived.
That, the Plaintiff hereinJohn Munyu Kisolo– now deceased be substituted byAgnes Kavindu Mativothe legal representative of the estate of the deceased.
That, costs of this application be provided for.”
The background to the application as deponed in the affidavit in support is that James Mativo Munyu died in a Road Traffic Accident on 27/4/1998. The Applicant is the wife of the deceased. The grant of Letters of Administration was issued to John Munyu Kisolo, the father to the deceased who instituted CMCC Machakos No. 437 of 2000. However, the same John Munyu Kisolo also passed away on 6/6/2001 and is the one the Applicant wishes to be substituted.
In opposition to the application, the Respondent filed the grounds of opposition dated 1/2/2013 and a replying affidavit. It is contended that the application is incompetent and substitution cannot be carried out in a non-existent suit and that the application for revival has been filed in the wrong court.
Parties herein agreed to canvass the application by way of written submissions. The Applicant did not file any and did not attend court on the next date. I have however perused the court record and considered the application, the reply to the same and the Respondent’s written submissions.
It is noteworthy that the suit (SRMCC 437/00)is the one which abated. Any application for revival must be made within the abated suit. I agree with the Respondent’s submission that the application is incompetent. Consequently, I strike out the same with costs.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 19thday of June2014.
………………………………………
B. THURANIRA JADEN
JUDGE