[2018] KEELC 3615 (KLR)
The court found that the applicant failed to provide any plausible or sufficient explanation for the prolonged delay in prosecuting the suit and in seeking substitution after the deaths of both the plaintiff and defendant. The court noted that the matter had been dormant for years, with no action taken by the...
Source-derived case information.
- Citation
- [2018] KEELC 3615 (KLR)
- Parties
- Plaintiff: John Kiruki Marete; Defendant: Ruchugo Munyari; Applicant: Benson Kirema Kiruki; Respondent: Samson Muthuri Ruchugo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 68 of 1996
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Revival and Substitution After Death of Parties
- Outcome
- application dismissed; suit closed and archived
- Legal Topics
- Revival of Suit, Substitution of Parties, Abatement of Suit, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kiruki Marete
Plaintiff
Ruchugo Munyari
Defendant
Benson Kirema Kiruki
Applicant
Samson Muthuri Ruchugo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Revival and Substitution After Death of Parties
Legal Issues
- 1 Whether the cause of action survives the deceased plaintiff and defendant and the suit should be revived.
- 2 Whether the legal representatives of the deceased parties should be substituted as parties to the suit.
- 3 Whether the delay in prosecuting the suit justifies dismissal of the application for revival.
Ratio Decidendi
The court found that the applicant failed to provide any plausible or sufficient explanation for the prolonged delay in prosecuting the suit and in seeking substitution after the deaths of both the plaintiff and defendant. The court noted that the matter had been dormant for years, with no action taken by the applicant or his counsel despite opportunities and directions given by the court. Given the age of the case, the lack of diligence by the applicant, and the fact that it was the court that had attempted to keep the file active since 2009, the court exercised its discretion to dismiss the application for revival and substitution. The court held that the applicant had not met the...
Court Disposition
application dismissed; suit closed and archived
Orders
- The application dated 16.3.2018 is dismissed.
- The file is marked as closed and is to be taken to the archives.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 68 OF 1996
JOHN KIRUKI MARETE....................................PLAINTIFF
VERSUS
RUCHUGO MUNYARI.....................................DEFENDANT
RULING
1. In the application dated 16. 3.2018, applicant seeks the following orders
(i) Spent.
(ii) That there be a declaration that the cause of action herein survives the deceased plaintiff and deceased defendant and the suit be revived for determination.
(iii) That the legal representative of the deceased plaintiff, one BENSON KIREMA KIRUKI be made a party in this suit in place of the deceased plaintiff.
(iv) That the administrator of the estate of the deceased defendant, one SAMSON MUTHURI RUCHUGO be made a party in this suit in place of the deceased defendant.
2. The background to this matter is that both the original plaintiff and defendant are dead. Plaintiff died on 13. 5.2011 while defendant died in 2009.
3. Applicant avers that this suit has never been determined on its merits and it therefore remains undetermined. He further avers that he is desirous of pursuing the proceedings, herein as a son and legal representative of the deceased.
4. I have keenly perused the records of this file. This is one of the oldest matters in the station, the same having been filed in 1996.
5. The matter was listed for notice to show cause on 6. 7.2015 but on that day, the court was informed that one Benson Kirema (the present applicant) was desirous of pursuing the case by pursuing the issue of taking out letters of administration in respect of the estate of deceased defendant.
6. The court indulged the plaintiff’s side and directed that matter be mentioned before the deputy registrar on 3. 9.2015 to confirm progress made on issue of limited grant.
7. On 3. 9.2015 the matter was mentioned before the deputy Registrar, again the court was informed that plaintiff’s son was ready to take over the matter and would file the application for substitution. Nothing happened until almost two years thereafter when the court issued a hearing notice for 3. 5.2017. Mr. Kaimba appeared for plaintiff and requested for file to be put aside. He didn’t re-appear. The matter was hence dismissed. No plausible or any explanation has been advanced as to why plaintiffs’ counsel requested the file to be put aside only for him to disappear. Further, no explanation has been advanced as to why the matter stayed in limbo since 3. 9.2015.
8. Considering the age of this case and keeping in mind that since 1. 12. 09 it is the court which has attempted to keep the file active, then I disallow the application dated 16. 3.2018. The application is dismissed. This file is marked as closed and is to be taken to the archives.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 25th APRIL, 2018
IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Miss Nyaga for applicant
Respondent absent
HON. LUCY. N. MBUGUA
ELC JUDGE