[2019] KEHC 2520 (KLR)
The court found that the applicants, as legal representatives of the deceased plaintiff, had demonstrated sufficient cause for their inability to prosecute the suit, as the plaintiff had died and the advocate lacked instructions. The applicants obtained a limited grant of letters of administration specifically for...
Source-derived case information.
- Citation
- [2019] KEHC 2520 (KLR)
- Parties
- Plaintiff: Dorothy N. Inoti; Defendant: Salome Nkatha M’iringoi; Defendant: Jacob Karani; Defendant: James Manyara; Applicant: Gakii Kinyua; Applicant: Molly Kathure; Applicant: Luct Karambu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Originating Summons 22 of 2014
- Procedural Posture
- Originating Summons / Ruling on Application for Review and Substitution After Dismissal for Want of Prosecution
- Outcome
- application allowed
- Legal Topics
- Dismissal for Want of Prosecution, Revival of Suit, Substitution of Parties, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dorothy N. Inoti
Plaintiff
Salome Nkatha M’iringoi
Defendant
Jacob Karani
Defendant
James Manyara
Defendant
Gakii Kinyua
Applicant
Molly Kathure
Applicant
Luct Karambu
Applicant
Procedural Posture
Originating Summons / Ruling on Application for Review and Substitution After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether sufficient cause was shown to warrant the revival of the suit dismissed for want of prosecution.
- 2 Whether the applicants should be substituted as plaintiffs as legal representatives of the deceased original plaintiff.
Ratio Decidendi
The court found that the applicants, as legal representatives of the deceased plaintiff, had demonstrated sufficient cause for their inability to prosecute the suit, as the plaintiff had died and the advocate lacked instructions. The applicants obtained a limited grant of letters of administration specifically for the purpose of continuing the suit, showing diligence and intent to pursue the matter. The court was satisfied that the circumstances justified setting aside the dismissal and reviving the suit, and allowed the substitution of the applicants as plaintiffs. The absence of opposition from the respondents further supported the grant of the orders sought.
Court Disposition
application allowed
Orders
- The Notice of Motion dated 3rd December 2018 is allowed.
- The orders dismissing the suit for want of prosecution are reviewed, varied, or vacated.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ORIGINATING SUMMONS NO. 22 OF 2014
DOROTHY N. INOTI.....................................PLAINTIFF
VERSUS
SALOME NKATHA M’IRINGOI.......1ST DEFENDANT
JACOB KARANI..................................3RD DEFENDANT
JAMES MANYARA.............................4TH DEFENDANT
GAKII KINYUA
MOLLY KATHURE
LUCT KARAMBU.....................................APPLICANTS
RULING
1. The Notice of Motion before me is dated 3rd December 2018 and is brought under section 1A, 1B & 3A of the Civil Procedure Act and Order 51 & Order 24 Rule 3 of the Civil Procedure Rules as well as Article 159 (2) of the Constitution of Kenya and all other enabling provisions of the Law. Applicants are seeking orders of review, varying or vacation of the orders dismissing the suit for want of prosecution and revive the same for hearing on merit. They also seek orders to be substituted as plaintiffs in this suit.
2. The application is based on the grounds on the face of it and in the supporting affidavit of Gakii Kinyua Kiungu who deponed that on 22nd June 2018, this suit was dismissed for want of prosecution. The plaintiffs advocate at that time was unable to proceed with the matter because of lack of instructions from the plaintiff. Unknown to him the plaintiff was deceased, having been unwell for some time. The family had obtained a limited grant of letters of administration strictly for the purposes of going on with this case.
3. The respondent did not file any documents in opposition to the application.
4. This suit was dismissed on 21. 6.2018 for want of prosecution. However, the applicants herein later filed this Notice of Motion explaining the circumstances under which the plaintiff was absent in court on the date of hearing. The plaintiff had been ill and she passed on.
5. Order 24 Rule 7 of the Civil Procedure Rules, 2010, titled "Effect of abatement or dismissal provides that:-
“(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the trustee or official receiver in the case of a bankrupt plaintiff may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit”.
6. A perusal of annexure AE-1 (the limited grant) shows that plaintiff died on 11. 3.2018, and the grant was issued on 3. 9.2018. The grant also shows that it was for purposes of continuing with Meru ELC NO. 22 OF 2014. This is a clear indication that the legal representatives of the deceased were vigilant and they took appropriate steps to ensure that the case was prosecuted. Sadly the case was dismissed before the grant was obtained. I am therefore inclined to believe that the counsel for the plaintiffs had no instructions as at 21. 6.2018 as plaintiff had passed on. I therefore find that applicants have demonstrated that there was sufficient cause which prevented them from prosecuting this case.
7. Final orders; I hereby allow the Notice of Motion dated 3. 12. 2018 with no orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 7TH DAY OF NOVEMBER, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Mwanzia holding brief for Kiautha A. for plaintiff
Muriithi holding brief for Kariuki for defendant
1st and 3rd applicants
HON. LUCY. N. MBUGUA
ELC JUDGE