[2006] KEHC 1439 (KLR)
The court found that the 1st Defendant died in 2002 and no steps were taken to substitute a legal representative in his place. As the application was unopposed and the facts were not controverted, the court held that, by operation of Order XXIII Rule 3(2) of the Civil Procedure Rules, the suit had abated as against...
Source-derived case information.
- Citation
- [2006] KEHC 1439 (KLR)
- Parties
- Plaintiff: Evanson Laboso Johana Kipchumba; Defendant: Kassamali Mulji Gilani; Applicant: Wilbay Ltd.
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 61B of 1999
- Procedural Posture
- Civil Case / Ruling on Application for Abatement Due to Death of Defendant
- Outcome
- Application allowed. Suit abated as against the 1st Defendant.
- Legal Topics
- Abatement of Suit, Death of Party, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evanson Laboso Johana Kipchumba
Plaintiff
Kassamali Mulji Gilani
Defendant
Wilbay Ltd.
Applicant
Procedural Posture
Civil Case / Ruling on Application for Abatement Due to Death of Defendant
Legal Issues
- 1 Whether the suit has abated as against the 1st Defendant due to his death and no legal representative being placed on record.
Ratio Decidendi
The court found that the 1st Defendant died in 2002 and no steps were taken to substitute a legal representative in his place. As the application was unopposed and the facts were not controverted, the court held that, by operation of Order XXIII Rule 3(2) of the Civil Procedure Rules, the suit had abated as against the 1st Defendant. The court accordingly allowed the application and ordered abatement of the suit against the deceased defendant.
Court Disposition
Application allowed. Suit abated as against the 1st Defendant.
Orders
- The suit herein has abated as against the 1st Defendant.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Civil Case 61B of 1999
EVANSON LABOSO
JOHANA KIPCHUMBA................................................................................................................PLAINTIFF
V E R S U S
KASSAMALI MULJI GILANI ................................................................................................DEFENDANT
R U L I N G
The Ruling is on the application by Chamber Summons dated 28. 7.05 by Wilbay Ltd., described as the Interested Party. The said application sought an order that the suit has abated as against the 1st Defendant because the latter died way back in the year 2000 and no personal representative was been placed on record. The application was not opposed by the plaintiff who was served, vide the affidavit of service sworn on 28. 11. 05 by Rodgers C. Fundi, a process server.
As the allegations made in the application and in particular the supporting affidavit sworn by I. S. Kuloba, an advocate, have not been contraverted, the 1st Defendant having died in the year 2002 and no step having been taken since to place the legal representative in the suit in place of the 1st Defendant, the suit had, by virtue of Rules 3 (2) of Order XXIII of the Civil Procedure Rules abated as against the 1st Defendant.
Accordingly, I allow the application and order that the suit herein has abated as against the 1st Defendant. Costs of the application shall be in the cause.
Dated at Kakamega this 24th day of February 2006
G. B. M. KARIUKI
J U D G E