[2018] KEELRC 2437 (KLR)
The court held that the application for substitution was filed more than two years and nine months after the plaintiff's death, far outside the one-year period stipulated by Order 24 Rule 3(1) of the Civil Procedure Rules 2010. The applicant failed to provide any good reason for the delay. Additionally, the deceased...
Source-derived case information.
- Citation
- [2018] KEELRC 2437 (KLR)
- Parties
- Plaintiff: Hottensiah Wambui Igogo; Defendant: Grace Kaiso (Sued on behalf of the Council of Anglican Provinces of Africa); Defendant: Archbishop Benjamin Nzimbi
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 296 of 2016
- Procedural Posture
- Employment Cause / Ruling on Application for Extension of Time to Substitute Deceased Plaintiff
- Outcome
- suit abated and dismissed with no order as to costs
- Judges
- MN Nduma, DO Ogal
- Legal Topics
- Substitution of Parties, Abatement of Suit, Extension of Time, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hottensiah Wambui Igogo
Plaintiff
Grace Kaiso (Sued on behalf of the Council of Anglican Provinces of Africa)
Defendant
Archbishop Benjamin Nzimbi
Defendant
Procedural Posture
Employment Cause / Ruling on Application for Extension of Time to Substitute Deceased Plaintiff
Legal Issues
- 1 Whether the court should grant extension of time to substitute the deceased plaintiff with the administrators more than one year after death.
- 2 Whether the suit should be deemed to have abated due to delay in substitution.
Ratio Decidendi
The court held that the application for substitution was filed more than two years and nine months after the plaintiff's death, far outside the one-year period stipulated by Order 24 Rule 3(1) of the Civil Procedure Rules 2010. The applicant failed to provide any good reason for the delay. Additionally, the deceased had not prosecuted the suit for over seven years prior to death, indicating a lack of interest. The court declined to exercise its discretion to extend time, found the suit had abated, and dismissed it with no order as to costs.
Court Disposition
suit abated and dismissed with no order as to costs
Orders
- The suit is dismissed for abatement.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 296 OF 2016
(BEFORE HON. JUSTICE MATHEWS N. NDUMA)
HOTTENSIAH WAMBUI IGOGO...................PLAINTIFF/APPLICANT
VERSUS
GRACE KAISO (Sued on behalf of the Council of Anglican Provinces
of Africa)................................................1ST DEFENDANT/RESPONDENT
ARCHBISHOP BENJAMIN NZIMBI................2NDDEFENDANT/RESP.
RULING
1. It is a common cause that the Plaintiff died on 10th October, 2011. It is also not in dispute that Letters of Administration intestate of all the estate of the deceased plaintiff was granted by the High Court on 2nd October, 2012. The applicant seeks extension of time within which to substitute the deceased plaintiff with the Administrators Perminus Ngugi Igogo, Florence Nyanjau Igogo and Grace Wambui Igogo.
2. This application was filed on 24th July 2014, about two years from the date of grant of the Letters of Administration.
3. The application is opposed on the grounds that since the 1st defendant entered appearance on the matter on 18th August, 2004 and filed defence on 7th December, 2004 no step was taken by the deceased in this matter until he died on 10th October, 2011.
4. That even upon death of the deceased, it has taken two years and nine (9) months to apply for substitution.
Determination
5. Order 24 Rule 3(1) of the Civil Procedure Rules 2010 requires that an application for substitution of the deceased plaintiff be made within one (1) year after the death of the Plaintiff.
6. In terms of sub-Rule (2), “where within one year no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned and, on the application of the Defendant the court may award to him costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff; provided the court may, for good reason on application, extend the time”
7. The applicant has not provided any good reason why the application for substitution should be granted more than two years and nine months upon the demise of the Plaintiff. Furthermore, it would appear that deceased had lost interest in this suit having not taken action to prosecute it for more than seven (7) years before his death.
8. The court is inclined not to exercise its discretion in favour of the applicants in the circumstances of this case. Accordingly, the suit has abated and is dismissed with no order as to costs.
Dated and Signed in Kisumu this 5th day of February, 2018
Mathews N. Nduma
Judge
Delivered and signed in Nairobi this 16th day of February, 2018
Maureen Onyango
Judge
Appearances
Mr. Ongicho for Applicant
Mr. Maende for Respondent
Anne Njung’e – Court Clerk