[2012] KEHC 2489 (KLR)
The court found that the applicant's inability to obtain the deceased's death certificate, which was hidden from him until 2009, constituted a good reason for the delay in seeking substitution. The court exercised its discretion under the Civil Procedure Rules to revive the suit, holding that the applicant had...
Source-derived case information.
- Citation
- [2012] KEHC 2489 (KLR)
- Parties
- Applicant: John Theuri Ngunjiri; Respondent: Rose Mukami Gichuki; Respondent: Ngunjiri Kirugumi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 94 of 1991
- Procedural Posture
- Civil Case / Ruling on Application to Revive Abated Suit
- Outcome
- Application to revive suit allowed.
- Legal Topics
- Abatement of Suit, Revival of Suit, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Theuri Ngunjiri
Applicant
Rose Mukami Gichuki
Respondent
Ngunjiri Kirugumi
Respondent
Procedural Posture
Civil Case / Ruling on Application to Revive Abated Suit
Legal Issues
- 1 Whether the suit should be revived after abatement due to the plaintiff's death.
- 2 Whether the applicant has provided sufficient reason for the delay in seeking substitution.
Ratio Decidendi
The court found that the applicant's inability to obtain the deceased's death certificate, which was hidden from him until 2009, constituted a good reason for the delay in seeking substitution. The court exercised its discretion under the Civil Procedure Rules to revive the suit, holding that the applicant had satisfactorily explained the delay and that justice would be served by allowing the revival of the suit.
Court Disposition
Application to revive suit allowed.
Orders
- The motion dated 8th August 2011 is allowed.
- The suit is revived.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
Civil Case 94 of 1991
JOHN THEURI NGUNJIRI............................................................................................PLAINTIFF
-versus-
MUKAMI GICHUKI}
NGUNJIRI KIRUGUMI }...........................................................................................DEFENDANTS
R U L I N G
The subject matter of this ruling is the motion dated 8th August 2011, in which John Theuri Ngunjiri, the Applicant herein seeks for an order reviving this suit. He swore an affidavit in support of the motion. Rose Mukami Gichuki, the Defendant/Respondent, filed a replying affidavit to oppose the motion.
I have considered the grounds set out on the face of the motion plus the facts deponed in the affidavit filed for and against the motion. It is the submission of the Applicant that thePlaintiff died on 13th March 2004 before the determination of this suit hence there is need to substitute
the Plaintiff and to have the suit revived. The Applicant averred that he was unable to apply for substitution within a period of 1 year because it took time for him to obtain a death certificate. He claimed the death certificate was hidden form him until the year 2009. The Defendant has opposed the application on the basis that the motion is incompetent since the suit abated about 7 years ago. It is true the suit abated after a period of one year from the date of the death of the deceased. The Law however gave the court a wide discretion to revive the suit if good reasons are given. The Applicant stated that he was unable to obtain the deceased\'s death certificate and that is why he did not succeed the deceased within a short time. I am convinced that is a good reason. Consequently, I allow the motion dated 8th August 2011. Costs shall be in the cause.
Dated and delivered this 17th day of August 2012.
J. K. SERGON
JUDGE