[2005] KEHC 173 (KLR)
The court held that since the plaintiff died and no application for substitution of his legal representative was made within one year, the suit abated as against the deceased plaintiff. The cause of action survived for the benefit of the estate, but the failure to substitute meant the suit could not proceed....
Source-derived case information.
- Citation
- [2005] KEHC 173 (KLR)
- Parties
- Plaintiff: Jeremiah Kamondo; Defendant: Agriculture Finance Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial 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 the estate of the 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 held that since the plaintiff died and no application for substitution of his legal representative was made within one year, the suit abated as against the deceased plaintiff. The cause of action survived for the benefit of the estate, but the failure to substitute meant the suit could not proceed. Consequently, the defendant was entitled to an award of costs against the estate of the deceased plaintiff, including the costs of the application, as provided by the Civil Procedure Rules.
Court Disposition
Application for costs allowed; suit abated; costs awarded to defendant against the estate of the 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
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
CIVIL CASE 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