[2009] KEHC 3059 (KLR)
The court found that more than one year had elapsed since the plaintiff's death without any application for substitution, thus the suit had abated by operation of law under Order XXIII Rule 3(2) of the Civil Procedure Rules. The court declined to dismiss the suit entirely, noting that the deceased's son had...
Source-derived case information.
- Citation
- [2009] KEHC 3059 (KLR)
- Parties
- Plaintiff: Eliakim Saka Odipo; Defendant: Dismus Kweyu Malalason
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 81 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Declare Suit Abated and for Dismissal
- Outcome
- Suit abated as against the plaintiff; no order as to costs.
- Legal Topics
- Abatement of Suit, Substitution of Parties, Succession Proceedings, Revival of Abated Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliakim Saka Odipo
Plaintiff
Dismus Kweyu Malalason
Defendant
Procedural Posture
Civil Case / Ruling on Application to Declare Suit Abated and for Dismissal
Legal Issues
- 1 Whether the suit should be declared abated due to the plaintiff's death and failure to substitute within one year.
- 2 Whether the suit should be dismissed after abatement.
- 3 Whether the affidavit filed out of time regarding succession proceedings should be accepted.
Ratio Decidendi
The court found that more than one year had elapsed since the plaintiff's death without any application for substitution, thus the suit had abated by operation of law under Order XXIII Rule 3(2) of the Civil Procedure Rules. The court declined to dismiss the suit entirely, noting that the deceased's son had commenced succession proceedings and could apply to revive the abated suit. The affidavit filed out of time was accepted as it provided proof of the ongoing succession process. The court therefore ordered that the suit had abated as against the plaintiff, with no order as to costs.
Court Disposition
Suit abated as against the plaintiff; no order as to costs.
Orders
- The suit is declared abated as against the plaintiff for failure to substitute within one year of death.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Civil Case 81 of 2003
ELIAKIM SAKA ODIPO ::::::::::::::::::::::::::::::::::::::::: PLAINTIFF
V E R S U S
DISMUS KWEYU MALALASON :::::::::::::::::::::::::::: DEFENDANT
R U L I N G
The defendant brought this application seeking orders that the suit herein be declared to have abated as against the plaintiff and that the same be dismissed. The application is supported by the defendant’s affidavit sworn on 5th September, 2008. Mr. Ondieki, learned counsel for the defendant submitted that the plaintiff died on 21-7-2007 and a period of one year passed yet no application to substitute the plaintiff was made. Counsel relied on Order XXIII Rule 4, 8and12 of the Civil Procedure Act.
Mr. Momanyi counsel for the plaintiff/respondent opposed the application and submitted that the respondent has already filed a Succession Cause and upon obtaining the letter of administration, he will apply to the court and substitute himself as the plaintiff.
Order XXIII rule III (2) is to the effect that if one year lapses after the death of the plaintiff and no application is made to substitute the deceased plaintiff, then the suit shall abate as far as the deceased plaintiff is concerned. Parties herein agree that the deceased plaintiff died on 21-7-2007. It is now over one year since he passed away until 5th September, 2008 when the current application was filed. It is therefore evident that this suit has abated as far as the plaintiff is concerned. I do grant prayer one of the defendant’s application as prayed.
Defendant’s second prayer is to have the suit dismissed. Order XXIII rule 8 has same effect to a suit that has either abated or dismissed. However, Order 8 (2) allows a legal representative to apply to court and have a suit that has abated to be revived.
Mr. Francis Namatsi Saka has indicated to this court that he has filed Succession Cause No.521 of 2008and has exhibited the gazette notice which proves this fact. Although the applicant urged the court to ignore the affidavit as the same was filed out of time, I do find the affidavit relevant as what is annexed to the affidavit is proof of commencement of succession proceedings. I therefore extend the time for the filing of the affidavit of Francis Namatsi and deem the same to have been properly filed within time.
Since the deceased plaintiff’s son has commenced succession proceedings I do not see the reason for dismissing this suit as already I have found that the same has abated. The deceased’s son is therefore at liberty to apply and have the abated suit revived.
I do therefore order that this suit has abated as against the plaintiff as no application to substitute the deceased was made within one year from the time the plaintiff died. There shall be no order as to costs.
Date, delivered and signed at Kakamega this 23rd day of July, 2009
SAID CHITEMBWE
J U D GE