[2020] KEHC 4588 (KLR)
The court found that the plaintiff died on 4th April 2013 and leave to substitute was granted on 19th May 2014. However, the personal representatives failed to amend the plaint and substitute themselves within the required fourteen days as per Order 8 Rule 6 of the Civil Procedure Rules 2010. The attempt to file an...
Source-derived case information.
- Citation
- [2020] KEHC 4588 (KLR)
- Parties
- Plaintiff: Kaburi Njoroge; Defendant: Lucy Wangui Njuguna; Defendant: Barclays Bank of Kenya Limited; Defendant: Joseph Gikonyo t/a Garam Investment
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 245 of 2010
- Procedural Posture
- Civil Suit / Ruling on Abatement and Substitution
- Outcome
- suit abated; costs to applicant
- Judges
- F Tuiyott
- Legal Topics
- Abatement of Suit, Substitution of Parties, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kaburi Njoroge
Plaintiff
Lucy Wangui Njuguna
Defendant
Barclays Bank of Kenya Limited
Defendant
Joseph Gikonyo t/a Garam Investment
Defendant
Procedural Posture
Civil Suit / Ruling on Abatement and Substitution
Legal Issues
- 1 Whether the suit abated following the plaintiff's death and failure to substitute within the prescribed period.
- 2 Whether the attempted substitution and amendment of pleadings after the lapse of time was valid.
- 3 Whether costs should be awarded to the applicant.
Ratio Decidendi
The court found that the plaintiff died on 4th April 2013 and leave to substitute was granted on 19th May 2014. However, the personal representatives failed to amend the plaint and substitute themselves within the required fourteen days as per Order 8 Rule 6 of the Civil Procedure Rules 2010. The attempt to file an amended plaint more than a year later was ineffectual, and the leave granted ceased to have effect on or about 3rd June 2014. Consequently, the suit abated on that date under Order 24 Rule 3. The court granted the applicant's prayer for a declaration of abatement and awarded costs to the applicant. The suit, having abated, could not be dismissed for want of prosecution.
Court Disposition
suit abated; costs to applicant
Orders
- Prayer 2 of the Notice of Motion dated 1st February 2019 is granted.
- The suit is declared abated as of 3rd June 2014.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
MILIMANI LAW COURTS
HCCC NO. 245 OF 2010
KABURI NJOROGE..............................................PLAINTIFF/APPLICANT
VS.
LUCY WANGUI NJUGUNA.................1ST DEFENDANT/RESPONDENT
BARCLAYS BANK OF
KENYA LIMITED................................2ND DEFENDANT/RESPONDENT
JOSEPH GIKONYO T/A
GARAM INVESTMENT....................3RD DEFENDANT/RESPONDENT
RULING
1. This suit has abated.
2. Kaburi Njoroge, the Plaintiff passed away on 4th April 2013. On 19th May 2014 leave was granted to Moses Njoroge Kaburi, George Murimi Kaburi and James Ndung’u Kaburi as personal representatives of the Plaintiff to substitute the Deceased.
3. Substitution required the Plaint to be amended by striking out the name of the deceased and replacing it with that of the personal representatives. As no period for amendment was specified then Order 8 Rule 6 of the Civil Procedure Rules 2010 applies. It reads;-
“Where the court has made an order giving any party leave to amend, unless that party amends within the period specified or, if no period is specified, within fourteen days, the order shall cease to have effect, without prejudice to the power of the court to extend the period”.
4. An attempt by the Plaintiffs to file an Amended Plaint more than a year later is ineffectual because the time for formalizing the substitution lapsed on or about 3rd June 2014. The leave granted ceased to have effect on that day with the result that this suit would abate on the same day. For this order 24 Rule 3 is instructive;
Procedure in case of death of one of several plaintiffs or of sole plaintiff [Order 24, rule 3. ]
(1) 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.
(2) Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff:
Provided the court may, for good reason on application, extend the time.
5. For that reason, I grant prayer 2 of the Notice of Motion dated 1st February 2019. As the suit has abated then it cannot be available for dismissal for want of prosecution. Costs to the Applicant.
Dated, Signed and Delivered in Court at Eldoret this 28th Day of April 2020
F. TUIYOTT
JUDGE
ORDER
In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 17TH April 2020, this Ruling has been delivered to the parties through virtual platform.
F. TUIYOTT
JUDGE
PRESENT: