[2015] KEHC 5512 (KLR)
The court found that the applicants provided a convincing explanation for the delay in seeking substitution and revival of the abated suit, namely the time required to obtain a grant of letters of administration due to registry delays. Since the application was unopposed and the requirements of Order 24 rule 7(2)...
Source-derived case information.
- Citation
- [2015] KEHC 5512 (KLR)
- Parties
- Plaintiff: John Abunga Mogaka; Defendant: Richard Khisa Matayo (deceased); Defendant: Applicants (administrators of the estate of Richard Khisa Matayo)
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 72 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application for Substitution and Revival of Abated Suit
- Outcome
- Application allowed. Applicants substituted as defendants. Civil Suit No. 76 of 2010 revived. Costs in the cause.
- Judges
- EO Obaga
- 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
John Abunga Mogaka
Plaintiff
Richard Khisa Matayo (deceased)
Defendant
Applicants (administrators of the estate of Richard Khisa Matayo)
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Substitution and Revival of Abated Suit
Legal Issues
- 1 Whether the applicants should be substituted as defendants as legal representatives of the deceased.
- 2 Whether Civil Suit No. 76 of 2010, which had abated, should be revived.
Ratio Decidendi
The court found that the applicants provided a convincing explanation for the delay in seeking substitution and revival of the abated suit, namely the time required to obtain a grant of letters of administration due to registry delays. Since the application was unopposed and the requirements of Order 24 rule 7(2) were satisfied, the court allowed the substitution of the applicants as defendants and revived Civil Suit No. 76 of 2010. Costs were ordered to be in the cause.
Court Disposition
Application allowed. Applicants substituted as defendants. Civil Suit No. 76 of 2010 revived. Costs in the cause.
Orders
- Applicants are allowed to continue the suit as legal representatives of the deceased.
- Civil Suit No. 76 of 2010 is revived.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL SUIT NO. 72 OF 2010
JOHN ABUNGA MOGAKA ::::::::::::::::::::::::::::::::::::::: PLAINTIFF
VERSUS
RICHARD KHISA MATAYO ::::::::::::::::::::::::::::::::::::::: DEFENDANT
R U L I N G
1. The applicants are the administrators of the estate of the late Richard Khisa Matayo who died on 13/9/2013. They brought a notice of motion dated 19/12/2014 seeking to be substituted as defendants in this case as legal representatives of the deceased. They also sought an order reviving Kitale High Court Civil Case No. 76 of 2010. This case had been consolidated with the present one on 27/3/2012. The deceased was the plaintiff in that case and the plaintiff in the present case was the defendant in that case.
2. The respondents who were duly served did not file any grounds of opposition or replying affidavit. The application is therefore unopposed. The deceased died on 13/9/2013. there was no substitution made within one year as required. The suit has therefore abated. Under Order 24 rule 7 (2) any legal representative to a deceased is at liberty to apply for revival of a suit which has abated. The court may revive the suit if it is convinced that the legal representatives of the deceased were prevented for some reason from continuing with the case. In the present case, the applicants have explained that they filed for grant of letters of administration on 2/1/2014. It is not until 2/12/2014 that a grant was issued. This was due to the delay by the registry to process the grant. This application was made more than a month later. I find that the explanation given is convincing. I allow the applicants application with the result that the applicants are hereby allowed to continue the suit as legal representatives of the deceased. Civil suit No. 76 of 2010 which had abated is hereby revived. Costs shall be in the cause.
It is so ordered.
Dated, signed and delivered at Kitale on this 16th day of April, 2015.
E. OBAGA
JUDGE
In the presence of Mr Wafula for applicant – Present. Court Clerk Kassachoon.
E. OBAGA
JUDGE
16/4/2015