[2010] KEHC 1320 (KLR)
The court held that the application to dismiss the suit for want of prosecution was incompetent because it was brought against a deceased plaintiff. Under Order 23 rule 3(1) of the Civil Procedure Rules, any proceedings against a deceased party must be directed at their legal representative. Since no legal...
Source-derived case information.
- Citation
- [2010] KEHC 1320 (KLR)
- Parties
- Plaintiff: George Rumbo (Deceased); Defendant: Jones Gibson Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 464, 2087 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Dismiss Suit for Want of Prosecution
- Outcome
- application struck out as incompetent
- Legal Topics
- Want of Prosecution, Substitution of Parties, Vacant Possession, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Rumbo (Deceased)
Plaintiff
Jones Gibson Mwangi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Dismiss Suit for Want of Prosecution
Legal Issues
- 1 Whether an application to dismiss a suit for want of prosecution can be maintained against a deceased plaintiff.
- 2 Whether proceedings can be taken against a party who is deceased without substitution of a legal representative.
Ratio Decidendi
The court held that the application to dismiss the suit for want of prosecution was incompetent because it was brought against a deceased plaintiff. Under Order 23 rule 3(1) of the Civil Procedure Rules, any proceedings against a deceased party must be directed at their legal representative. Since no legal representative had been substituted for the deceased plaintiff, the application could not be entertained and was therefore struck out.
Court Disposition
application struck out as incompetent
Orders
- The application to dismiss the suit for want of prosecution is struck out.
- Any further proceedings must be brought against the legal representative of the deceased plaintiff.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Environmental & Land Case 464, 2087 of 2007,2001
GEORGE RUMBO(Deceased) ……..PLAINTIFF/RESPONDENT
V E R S U S
JONES GIBSON MWANGI ………....…DEFENDANT/APPLICANT
R U L I N G
The Defendant is asking that the court dismisses the present suit for want of prosecution and to reconsider his application dated 9th October, 2008 and grant the prayers therein. The Plaintiff against whom the application is being brought passed away on 11th November, 2006.
The history of this case is that on 3rd December, 2001 the Plaintiff came to court by way of originating summons under Order 36 rules 3, 3Fand5of theCivil Procedure Rules seeking vacant possession of land number Nairobi/Block 76/810 which he had bought at a public auction and which the Defendant was interfering with. On4th June, 2002on basis that the Defendant had been served by advertisement in the DAILY NATION and had not entered appearance or filed defence, an ex parte judgment was entered. Execution duly followed. There have been various applications since, but the judgment and the consequential orders have not been set aside. The Plaintiff had this judgment in his favour when he died.
The present application is incompetent as it purports to be against a dead Plaintiff. Under Order 23 rule 3(1) of the Civil Procedure Rules such application can only be brought against the legal representative of the deceased Plaintiff. Whatever other proceedings the Defendant is contemplating in this matter can only be brought against such a legal representative. For the time being, the present application is struck out.
DATED AND DELIVERED AT NAIROBI
THIS 12TH DAY OF OCTOBER 2010
A.O. MUCHELULE
J U D G E