[2019] KEELC 1484 (KLR)
The court found that the application for revival and substitution was made within a reasonable time, considering the plaintiff's death and the time required to obtain letters of administration. The non-attendance of the advocate was deemed inadvertent and not attributable to the estate. The court exercised its...
Source-derived case information.
- Citation
- [2019] KEELC 1484 (KLR)
- Parties
- Plaintiff: Edward Muriira M’ Maingi; Applicant: Mwiti Maingi Robinson; Defendant: Julius Mugambi Josephat
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 82 of 2015
- Procedural Posture
- Miscellaneous Application / Application for Revival and Substitution After Dismissal for Want of Prosecution
- Outcome
- Application allowed. Suit reinstated and substitution granted.
- Legal Topics
- Revival of Suit, Substitution of Parties, Dismissal for Want of Prosecution, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Muriira M’ Maingi
Plaintiff
Mwiti Maingi Robinson
Applicant
Julius Mugambi Josephat
Defendant
Procedural Posture
Miscellaneous Application / Application for Revival and Substitution After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be revived after dismissal for want of prosecution.
- 2 Whether the applicant should be substituted as plaintiff in place of the deceased.
Ratio Decidendi
The court found that the application for revival and substitution was made within a reasonable time, considering the plaintiff's death and the time required to obtain letters of administration. The non-attendance of the advocate was deemed inadvertent and not attributable to the estate. The court exercised its discretion under Order 12 Rule 7 of the Civil Procedure Rules to set aside the dismissal, reinstate the suit, and substitute the applicant as the legal representative of the deceased plaintiff. No prejudice was shown to the defendant, and the overriding objective of justice warranted allowing the application.
Court Disposition
Application allowed. Suit reinstated and substitution granted.
Orders
- The orders of dismissal of the suit made on 14th December 2018 are set aside and the suit is reinstated.
- Edward Muriira M’ Maingi (deceased) is substituted with Mwiti Maingi Robson as legal representative of the estate.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 82 OF 2015
EDWARD MURIIRA M’ MAINGI..........................................PLAINTIFF
MWITI MAINGI ROBINSON................................................APPLICANT
VERSUS
JULIUS MUGAMBI JOSEPHAT..........................................DEFENDANT
RULING
1. The Plaintiff through the application dated 8th February 2019 prays for the revival of this suit which was dismissed on 14th December 2018. He also seeks to be substituted in place of Edwin Muriira M’ Maingi (now deceased).
2. The application is unopposed. This suit was dismissed with costs for want of prosecution on 14th December 2018. On the material day the plaintiff and his advocate were not present. The Defendant’s advocate was present and ready to proceed with one (1) witness.
3. The applicant alleges that on the particular day, they came with the plaintiff (now deceased) to the court premises and tried to look for their advocate but they were unable to trace him. They later learnt that the matter had been called out and dismissed. He avers that the non-attendance of the advocate was inadvertent and the same should not be visited upon the estate of the deceased who are eager to prosecute the suit.
4. The plaintiff herein died on 29th December 2018. Grant of letters of Administration Ad-litem were issued to the applicant on 31st January 2019.
5. Order 12 Rule 7 of the Civil Procedure Rules provides as follows;
“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just”.
6. The application herein has been made two months after the suit had been dismissed. Given the untimely death of the plaintiff and the time taken to secure grant of letters of administration Ad litem, I consider that the delay is not unreasonable and I hereby give the applicant the benefit of doubts and proceed to allow the application.
7. The Court therefore makes the following Orders;
(i) The Orders of Dismissal of the suit made on 14th December 2018 be and are hereby set aside and the suit is reinstated.
(ii) Edward Muriira M’ Maingi (now deceased) be and is hereby substituted with Mwiti Maingi Robson ( the legal representative of the estate of deceased)
(iii) No orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 2ND DAY OF OCTOBER, 2019.
IN THE PRESENCE OF:-
C/A: Kananu
Mutegi holding brief for Kiogora Mugambi for plaintiff
Defendant
HON. LUCY. N. MBUGUA
ELC JUDGE