[2018] KEELC 2017 (KLR)
The court held that since the suit had abated following the death of the defendant and no application for revival had been made, there was no existing suit before the court. Consequently, the court lacked jurisdiction to extend time, give directions for substitution, or compel any party to act in relation to a...
Source-derived case information.
- Citation
- [2018] KEELC 2017 (KLR)
- Parties
- Plaintiff: James Muchiri Mukoma; Defendant: James Nderitu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 101 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application dismissed
- Judges
- SN Mukunya
- Legal Topics
- Abatement of Suit, Substitution of Parties, Revival of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Muchiri Mukoma
Plaintiff
James Nderitu
Defendant
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the court can extend time or give directions to substitute the defendant after the suit has abated.
- 2 Whether the defendant's wife can be compelled to substitute the deceased defendant in an abated suit.
Ratio Decidendi
The court held that since the suit had abated following the death of the defendant and no application for revival had been made, there was no existing suit before the court. Consequently, the court lacked jurisdiction to extend time, give directions for substitution, or compel any party to act in relation to a non-existent suit. The application was therefore dismissed as being without merit.
Court Disposition
application dismissed
Orders
- The application is dismissed for being without merit.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COUIRT AT KERUGOYA
ELC CASE NO. 101 OF 2013
JAMES MUCHIRI MUKOMA .................................... PLAINTIFF
VERSUS
JAMES NDERITU .................................................... DEFENDANT
RULING
[1] The applicant herein prays that the Court do extend the time in this matter and further that the Court do give further directions in this matter to substitute the defendant. There is an alternative prayer that the defendant’s wife be compelled to substitute the deceased in this matter.
[2] This application is opposed and grounds of opposition have been filed under Order 51 Rule 14 (1) of the Civil Procedure Rules 2010. One of the grounds advanced by the defendant’s counsel is that the suit abated on 16th of November 2012. That is one year after the demise of the defendant and that the suit has not been revived.
There has been no application to revive the suit under Order 24 Rule 3 (2).
[3] This is a fact not denied or controverted by the applicant. When a suit abates, it ceases to exist and there is therefore no case for which time can be extended or any directions given. Equally there is no suit for which any order can be given to compel anyone to do an act.
[4] There being no suit, this application is dismissed for being without merit with costs to the defendant.
S.N. MUKUNYA
JUDGE
20TH JULY, 2018