[2006] KEHC 3294 (KLR)
The court held that since the plaintiff died and the cause of action survived, and the application for substitution was made within one year of death, the suit had not abated. The applicant, Michael Mwangi Thuo, had the requisite limited grant of letters of administration ad litem. The court found no merit in the...
Source-derived case information.
- Citation
- [2006] KEHC 3294 (KLR)
- Parties
- Plaintiff: Joram Thuo Wairegi; Defendant: Kenya Commercial Finance Company Limited; Applicant: Michael Mwangi Thuo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 149 of 1999
- Procedural Posture
- Civil Case / Ruling on Application for Substitution of Deceased Plaintiff
- Outcome
- application allowed
- Judges
- DW Mbuteti
- Legal Topics
- Substitution of Parties, Death of Plaintiff, Letters of Administration, Abatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joram Thuo Wairegi
Plaintiff
Kenya Commercial Finance Company Limited
Defendant
Michael Mwangi Thuo
Applicant
Procedural Posture
Civil Case / Ruling on Application for Substitution of Deceased Plaintiff
Legal Issues
- 1 Whether the legal representative of the deceased plaintiff should be substituted as a party to the suit.
- 2 Whether the supporting affidavit must be sworn by the applicant or may be sworn by counsel.
- 3 Whether the application for substitution was made within the prescribed time to prevent abatement of the suit.
Ratio Decidendi
The court held that since the plaintiff died and the cause of action survived, and the application for substitution was made within one year of death, the suit had not abated. The applicant, Michael Mwangi Thuo, had the requisite limited grant of letters of administration ad litem. The court found no merit in the defendant's technical objection regarding the supporting affidavit, as there were no contentious issues of fact or law requiring the affidavit to be sworn by the applicant personally. Therefore, the application for substitution was allowed with costs in the cause.
Court Disposition
application allowed
Orders
- Michael Mwangi Thuo is substituted as plaintiff in place of the deceased Joram Thuo Wairegi.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL DIVISION, MILIMANI
Civil Case 149 of 1999
JORAM THUO WAIREGI ……………….…………………..………... PLAINTIFF
VERSUS
KENYA COMMERCIAL FINANCE COMPANY LIMITED ….... DEFENDANT
R U L I N G
This is an application for substitution of one MICHAEL MWANGI THUO in place of the deceased Plaintiff, JORAM THUO WAIREGI,who is said to have died on 12th March 2005. The aforesaid MICHAEL MWANGI THUO has the necessary limited grant of letters of administration ad litemdated 15th June 2005 duly issued in Nairobi Probate and Administration Cause No. 1511 of 2005. The application is brought under Order 23, rule 3 of the Civil Procedure Rules, though the wrong rules have been quoted on the application. Under subrule (1) of that rule, where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
There is no dispute that the Plaintiff died as stated on 12th March 2005. It is also not disputed that the present application was made within one year from the date of that death, and that therefore the suit has not abated. Nor is it urged that the cause of action did not survive the Plaintiff’s death. Finally, it is not disputed that MICHAEL MWANGI THUO is the legal representative of the deceased Plaintiff. In these circumstances, it is difficult to understand why the application has been opposed by the Defendant on the technical ground that the affidavit in support thereof is defective. The only alleged defect stated by the Defendant’s learned counsel is that the supporting affidavit should have been sworn by MICHAEL MWANGI THUOand not by the Plaintiff’s learned counsel. But there are no contentious issues of fact or law deposed in the supporting affidavit. Therefore, there is nothing wrong with the Plaintiff’s learned counsel swearing the supporting affidavit.
In these circumstances I will allow the application with costs in the cause. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF FEBRUARY, 2006.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 10TH DAY OF FEBRUARY, 2006.