[2017] KEELRC 1978 (KLR)
The court found that although Order 24 rules 1, 2 and 3(1) of the Civil Procedure Rules appear to address substitution in cases with multiple claimants, there is ambiguity as to whether the same rules apply to cases with a single claimant. Given the absence of opposition and in the interest of justice, the court...
Source-derived case information.
- Citation
- [2017] KEELRC 1978 (KLR)
- Parties
- Claimant: Julius Kiprotich Kiptoo (deceased); Respondent: Kerio Valley Development Authority
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Cause 148 of 2017
- Procedural Posture
- Employment Cause / Ruling on Substitution Application After Claimant's Death
- Outcome
- Application for substitution allowed.
- Judges
- MSA Makhandia
- Legal Topics
- Substitution of Parties, Abatement of Suit, Civil Procedure Rules, Legal Representative, Death of Claimant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Kiprotich Kiptoo (deceased)
Claimant
Kerio Valley Development Authority
Respondent
Procedural Posture
Employment Cause / Ruling on Substitution Application After Claimant's Death
Legal Issues
- 1 Whether the suit abates upon the death of the sole claimant if substitution is not made within one year.
- 2 Whether the applicant can be substituted as the legal representative of the deceased claimant after one year.
- 3 Whether Order 24 rules 1, 2 and 3(1) of the Civil Procedure Rules apply to cases with a single claimant.
Ratio Decidendi
The court found that although Order 24 rules 1, 2 and 3(1) of the Civil Procedure Rules appear to address substitution in cases with multiple claimants, there is ambiguity as to whether the same rules apply to cases with a single claimant. Given the absence of opposition and in the interest of justice, the court exercised its discretion to allow the substitution of the deceased claimant with the applicant as the legal representative, even though more than one year had elapsed since the claimant's death. The court directed that an amended statement of claim be filed and served, and granted the respondent liberty to file an amended response if necessary.
Court Disposition
Application for substitution allowed.
Orders
- An amended Statement of Claim be filed and served upon the Respondent within 10 days from the date of the ruling.
- The Respondent is at liberty to file an amended Response within 10 days of service, if necessary.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET
CAUSE NO. 148 OF 2017
(Originally Nakuru Cause No. 164 of 2016)
JULIUS KIPROTICH KIPTOO CLAIMANT
v
KERIO VALLEY DEVELOPMENTAUTHORITY RESPONDENT
RULING
1. For determination is a motion dated 10 October 2017 seeking
a) …
b) ….
c) An order for substitution of the Claimant herein, now deceased, be made;
d) Mercy Nyambura Kiptoo be made a party to this claim as the legal representative of the estate of Julius Kiprotich Kiptoo and the claimant henceforth, and be allowed to proceed with this suit;
e) The costs of this application be in the cause.
2. On 11 October 2017, the Court directed that the application be served for inter partes hearing on 31 October 2017.
3. According to an affidavit of service sworn by Alubala Andambi Advocate, a hearing notice for the application was served upon the Federation of Kenya Employers which is on record for the Respondent on 13 October 2017.
4. Despite the service, the Respondent did not file any response in opposition to the application.
5. Although the applicant has anchored the application on Order 24 rules 1,2 and 3(1) of the Civil Procedure Rules, it appears from the text of the cited provisions of the rules that those provisions apply in situations where there are more than one Claimant/Plaintiff.
6. This Court cannot tell whether it was a typographical error not to include suits where there is only one Claimant/Plaintiff or whether the question of abatement and substitution within a year of death ought not to apply.
7. Perhaps the Rules Committee may want to look into the issue.
8. The benefit of doubt in such cases would go to an applicant seeking substitution even after one year where there was a single Claimant/Plaintiff.
9. The Court in effect allows the motion and orders
(i) An amended Statement of Claim be filed and served upon the Respondent within 10 days from today.
(ii) Respondent at liberty to file an amended Response within 10 days of service, if necessary
(iii) Costs in the Cause.
Delivered, dated and signed in Eldoret on this 3rd day of November 2017.
Radido Stephen
Judge
Appearances
For applicant Mr. Mogambi instructed by Andambi & Co. Advocates
For Respondent Federation of Kenya Employers
Court Assistants Nixon/Martin