[2015] KEHC 3940 (KLR)
The court held that the suit abated on 9th January, 2015, as substitution of the deceased plaintiff was not effected within one year of death. The application for substitution was filed after abatement and no application for extension of time was made. Therefore, there was no valid suit in which substitution could...
Source-derived case information.
- Citation
- [2015] KEHC 3940 (KLR)
- Parties
- Plaintiff: David Njenga Wanjeri; Plaintiff: Nahashon Muhoro; Defendant: The Attorney General; Defendant: Joseph Karibu Njenga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 481 of 2008
- Procedural Posture
- Civil Suit / Ruling on Application for Substitution of Deceased Plaintiff
- Outcome
- application dismissed
- Judges
- DA Onyancha
- Legal Topics
- Abatement of Suit, Substitution of Parties, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Njenga Wanjeri
Plaintiff
Nahashon Muhoro
Plaintiff
The Attorney General
Defendant
Joseph Karibu Njenga
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Substitution of Deceased Plaintiff
Legal Issues
- 1 Whether the suit abated due to failure to substitute the deceased plaintiff within the prescribed time period.
- 2 Whether the court can grant substitution of a deceased plaintiff after abatement without an application for extension of time.
Ratio Decidendi
The court held that the suit abated on 9th January, 2015, as substitution of the deceased plaintiff was not effected within one year of death. The application for substitution was filed after abatement and no application for extension of time was made. Therefore, there was no valid suit in which substitution could be effected, and the relief sought was incapable of being granted. The application was dismissed with costs.
Court Disposition
application dismissed
Orders
- The application for substitution is dismissed with costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NUMBER 481 OF 2008
DAVID NJENGA WANJERI. …...……………………..…. 1ST PLAINTIFF
NAHASHON MUHORO. …………………………………. 2ND PLAINTIFF
VERSUS
THE ATTORNEY GENERAL. ……………………………. 1ST DEFENDANT
JOSEPH KARIBU NJENGA. ……………………………... 2ND DEFENDANT
R U L I N G
The application before the court is the Notice of Motion dated 23rd January, 2015. It seeks, the substitution of the name of Nahashon Muhoro Waweru, (Deceased) who is Plaintiff, with that of the Administrator Ad Litem, Margaret Wanjiku Waweru.
The facts show that the Plaintiff aforementioned, died on 10th January, 2014 while this suit was pending. A grant of Letters of Administration was obtained by Margaret Wanjiku Waweru on 16th September, 2014. But this application was not filed until 23rd January, 2015.
It is not in doubt that if substitution was not effected with one year after 10th January, 2014, which in this case fell on 9th January, 2015, this suit would abate. To that end this suit abated on 9th January, 2015 even before this application was filed. That is to say that there is presently no valid suit to which or in respect of which the sought substitution of Margaret Wanjiku Waweru would be done.
It is possible for the applicant to have filed a specific application for the extension of time as provided under Order 24 Rule 3(2) of the Civil Procedure Rules. However, no such extension has been formerly and properly sought. In the above circumstances the relief sought in this application is incapable of being granted by this court. This application is accordingly hereby dismissed with costs. Orders accordingly.
Dated and Delivered at Nairobi this 7th day of July, 2015.
……………………………..
D A ONYANCHA
JUDGE