[2017] KEELC 1144 (KLR)
The court found that the plaintiff was not afforded an opportunity to be heard before the suit was dismissed, as no notice to show cause was served. The plaintiff had died prior to the dismissal, and the legal representatives had since obtained a limited grant of letters of administration. The court held that...
Source-derived case information.
- Citation
- [2017] KEELC 1144 (KLR)
- Parties
- Plaintiff: Gregory Kimani Thuita; Defendant: The Administrators of the Estate of David Muriuki Kaberere; Defendant: Susan Wanjiru Kaberere; Defendant: The City Council of Nairobi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 25 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and for Substitution of Plaintiff
- Outcome
- Applications granted with conditions.
- Judges
- AK Bor
- Legal Topics
- Setting Aside Dismissal, Substitution of Parties, Revival of Suit, Notice to Show Cause, Survival of Cause of Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gregory Kimani Thuita
Plaintiff
The Administrators of the Estate of David Muriuki Kaberere
Defendant
Susan Wanjiru Kaberere
Defendant
The City Council of Nairobi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and for Substitution of Plaintiff
Legal Issues
- 1 Whether the order dismissing the suit should be set aside for lack of notice to the plaintiff.
- 2 Whether the suit should be reinstated and the plaintiff substituted by the legal representative of the estate.
- 3 Whether sufficient cause was shown for failure to attend court before dismissal.
Ratio Decidendi
The court found that the plaintiff was not afforded an opportunity to be heard before the suit was dismissed, as no notice to show cause was served. The plaintiff had died prior to the dismissal, and the legal representatives had since obtained a limited grant of letters of administration. The court held that sufficient cause was shown for the failure to attend court and that the cause of action survived the deceased plaintiff. Accordingly, the court exercised its discretion under Order 12 Rule 7 and Order 24 Rule 7 of the Civil Procedure Rules to set aside the dismissal, revive the suit, and allow substitution of the plaintiff by the legal representatives, subject to the condition that...
Court Disposition
Applications granted with conditions.
Orders
- The applications dated 11/11/2016 and 8/6/2017 are granted.
- The suit is reinstated and the legal representatives substituted as plaintiffs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC. CASE NO. 25 OF 2009
GREGORY KIMANI THUITA……………………...……...PLAINTIFF
-VERSUS-
THE ADMINISTRATORS OF THE ESTATE OF
DAVID MURIUKI KABERERE………………..….……1ST DEFENDANT
SUSAN WANJIRU KABERERE…………...…………2ND DEFENDANT
THE CITY COUNCIL OF NAIROBI….…....….………3RD DEFENDANT
RULING
Through the application dated 8/6/2017, the applicant seeks to set aside the order made by the Hon. Mr. Justice Mutungi on 26/5/2015 dismissing the suit and to have the suit reinstated. A further prayer is made for this application to be heard together with the application dated 11/11/2016 which seeks to substitute the Plaintiff with the legal representative of the estate.
The application is made on the grounds that the court of its own motion dismissed the suit on 26/5/2015 without affording the Plaintiff a chance to be heard before making the order. The Plaintiff maintains that he was never served with a notice to show cause so that he would have attended court and urged the court not to dismiss the suit. The application is supported by the affidavit of the Plaintiff’s Advocate.
The Plaintiff died on 14/3/2015 and it is stated that the cause of action survived the Plaintiff. Hannah Wanjiru Kimani and Regina Murugi Kimani petitioned the court for limited grant of letters of administration ad litem and were granted the limited grant on 24/9/2015. The Defendants were served but they did not attend court or file responses to the applications.
Under Order 12 Rule 7 of the Civil Procedure Rules where a suit has been dismissed the court may set aside the order upon such terms as maybe just. A person claiming to be the legal representative of a deceased Plaintiff may apply to revive a suit which has abated or to set aside an order of dismissal pursuant to Order 24 Rule 7. If it is proved that he was prevented by sufficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or as the courts deems fit.
The court has considered the applications together with the supporting affidavits and grants the applications dated 11/11/2016 and 8/6/2017 on condition that this suit is heard and determined within six (6) months of today’s date failing which the suit shall stand dismissed without the court making any further orders. Costs shall be in the cause.
Dated and delivered at Nairobi this 1st day of November 2017.
K. BOR
JUDGE
In the presence of: -
Mr. Mugisha for the Plaintiff
No appearance for the Defendants
Mr. Vincent Owuor- Court Assistant