[2005] KEHC 2940 (KLR)
The court found that the plaintiff died on 29th August, 2002, and no application for substitution of a legal representative was made within one year of his death. Under Order 23, Rule 3(2) of the Civil Procedure Rules, the suit therefore abated as regards the deceased plaintiff. The cause of action survived for the...
Source-derived case information.
- Citation
- [2005] KEHC 2940 (KLR)
- Parties
- Plaintiff: Jeremiah Kamondo; Defendant: Agriculture Finance Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 151 of 1999
- Procedural Posture
- Civil Case / Ruling on Application for Costs After Abatement Due to Plaintiff's Death
- Outcome
- Application for costs allowed; suit abated; costs awarded to defendant against estate of deceased plaintiff.
- Legal Topics
- Abatement of Suit, Costs Award, Injunctions, Loan Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Kamondo
Plaintiff
Agriculture Finance Corporation
Defendant
Procedural Posture
Civil Case / Ruling on Application for Costs After Abatement Due to Plaintiff's Death
Legal Issues
- 1 Whether the suit abated upon the plaintiff's death and failure to substitute a legal representative within one year.
- 2 Whether the defendant is entitled to costs against the estate of the deceased plaintiff.
Ratio Decidendi
The court found that the plaintiff died on 29th August, 2002, and no application for substitution of a legal representative was made within one year of his death. Under Order 23, Rule 3(2) of the Civil Procedure Rules, the suit therefore abated as regards the deceased plaintiff. The cause of action survived for the benefit of the estate under Section 2(1) of the Law Reform Act, but since no substitution occurred, the defendant was entitled to an award of costs against the estate of the deceased plaintiff. The court accordingly ordered that the defendant recover the costs of the suit, including the costs of the application, from the estate of the deceased plaintiff.
Court Disposition
Application for costs allowed; suit abated; costs awarded to defendant against estate of deceased plaintiff.
Orders
- The costs of the suit, inclusive of the costs of this application, are awarded to the defendant to be recovered from the estate of the deceased plaintiff.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL DIVISION, MILIMANI
CIVIL CASE NO. 151 OF 1999
JEREMIAH KAMONDO………………………………………………....PLAINTIFF VERSUS AGRICULTURE FINANCE CORPORATION……………………………..…………………………DEFENDANT
R U L I N G
The Plaintiff herein, JEREMIAH KAMONDO, is said to have died on 29th August, 2002. A copy of his death certificate is exhibited in the affidavit of one GREGORY MUTAI, a legal officer of the Defendant, sworn in support of the chamber summons dated 12th November, 2004. In that application the Defendant seeks an order for costs against the estate of the deceased plaintiff. The application is brought under Order 23, Rule 3(2) of the Civil Procedure Rules.
The Plaintiff’s suit against the Defendant was for an injunction to restrain the Defendant from advertising for sale and/or alienating the suit property, L.R. LIMURU/KAMIRITHU/373, a declaration that the Defendant’s conduct was so inequitable as to disentitle it to its rights under the loan agreement between the parties, and for damages,inter alia. Under Section 2(1) of the Law Reform Act, Cap. 26, the cause of action in this suit survived the Plaintiff’s death for the benefit of his estate. As no application was made within one year since the Plaintiff’s death for substitution of his legal representative in the suit, the suit has abated so far as the deceased Plaintiff is concerned. I will therefore award the costs of the suit (inclusive of the costs of this application) to the Defendant to be recovered from the estate of the deceased Plaintiff. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 8TH DAY OF MARCH, 2005.
H. P. G. WAWERU
JUDGE
DELIVERED THIS…………………..DAY OF MARCH, 2005.