[2007] KEHC 1030 (KLR)
The court found that there was no evidence that the applicant (widow of the deceased defendant) was personally served with the application for substitution, as required by Order 23 of the Civil Procedure Code. The court also noted that the rules of substitution do not apply where only execution of decree is pending....
Source-derived case information.
- Citation
- [2007] KEHC 1030 (KLR)
- Parties
- Plaintiff: George Kamea Michael; Defendant: Mathew Gachiri Ngure
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 43 of 1999
- Procedural Posture
- Civil Case / Ruling on Application for Review and Setting Aside of Orders
- Outcome
- Application allowed in part; order affecting the widow set aside for non-service; no order on hearing de novo; costs to the applicant.
- Legal Topics
- Review of Orders, Substitution of Parties, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Kamea Michael
Plaintiff
Mathew Gachiri Ngure
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review and Setting Aside of Orders
Legal Issues
- 1 Whether the applicant was properly served with the application for substitution as a party in place of her deceased husband.
- 2 Whether the court orders made on 28/11/2005 should be reviewed and set aside for non-service.
- 3 Whether substitution of a legal representative is necessary where only execution of decree is pending.
Ratio Decidendi
The court found that there was no evidence that the applicant (widow of the deceased defendant) was personally served with the application for substitution, as required by Order 23 of the Civil Procedure Code. The court also noted that the rules of substitution do not apply where only execution of decree is pending. Consequently, the order affecting the widow was set aside for non-service, and no order was made regarding the prayer for hearing de novo as the applicant did not specify the desired court. Costs of the application were awarded to the applicant.
Court Disposition
Application allowed in part; order affecting the widow set aside for non-service; no order on hearing de novo; costs to the applicant.
Orders
- The order as it affected the widow of the defendant is set aside for non-service.
- No order is made regarding the prayer for hearing de novo.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 43 of 1999
GEORGE KAMEA MICHAEL……………..……………………..PLAINTIFF
VERSUS
MATHEW GACHIRI NGURE……………..………………….DEFENDANT
RULING
Application dated 12/9/2006 seeks review of court orders made on 28/11/2005 and that this matter be heard de novo before court of competent jurisdiction. The application is brought under section 3 A and Order XLIV rule 1. The grounds set out are that the applicant has found that the application to substitute her as a party in place of her deceased husband was not served upon her but only on the plaintiff’s former advocate. The service on Plaintiffs former advocate was in order in view of the first prayer. It is in accordance with Order III Rule 9 A. There is affidavit of service on this party.
Regarding the prayer to substitute the applicant instead of her husband there is no affidavit showing that the widow was served with the application again the rules on substitution of a party are provided under Order 23 CPC where a legal representative of a deceased party may be substituted in his place to proceed with the suit. The substitution must be made within one year.
I have perused this file and I do not see any evidence of death of the Defendant Mathew Gachiri Ngure. However, the provisions provide that where the issues outstanding is the execution of decree the rules of substitution of dead party shall not be applicable. Therefore if the defendant died before the suit was heard and determined the widow would be the right person to be substituted in his place if as it appears here the decree was made after the death execution of decree shall proceed without the substitution of the widow
Therefore the order as it affected the landing wife of the defendant is hereby set aside for non service and also as I see from the record only the execution is pending. Rule 11. Order 23 applies. Regarding prayer for hearing De Novo the applicant should indicate which court is desired no order is made.
The costs of the application to the applicant.
Dated this 2nd July, 2007.
J. N. KHAMINWA
JUDGE
2/7/2007
Khaminwa – Judge
Njue – Clerk
Mr. Utuku present
Ruling read in his presence in open court.
J. N. KHAMINWA
JUDGE