[2013] KEHC 2737 (KLR)
The court found that since the plaintiff died in August 2011 and no application for substitution was made within one year, the suit had abated by operation of law under Order 24 Rule 2 of the Civil Procedure Rules. The court further held that the defendant was entitled to costs, which are to be recovered from the...
Source-derived case information.
- Citation
- [2013] KEHC 2737 (KLR)
- Parties
- Plaintiff: Kangogo Chepkeitany; Defendant: Laban Chelelgo
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 195 of 2001
- Procedural Posture
- Civil Case / Ruling on Abatement Due to Plaintiff's Death and Non Substitution
- Outcome
- Suit abated against the defendant; costs awarded to the defendant to be recovered from the estate of the deceased plaintiff.
- Judges
- L Waithaka
- Legal Topics
- Abatement of Suit, Substitution of Parties, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kangogo Chepkeitany
Plaintiff
Laban Chelelgo
Defendant
Procedural Posture
Civil Case / Ruling on Abatement Due to Plaintiff's Death and Non Substitution
Legal Issues
- 1 Whether the suit should abate due to the death of the plaintiff and failure to substitute a legal representative within the prescribed period.
- 2 Whether the defendant is entitled to costs recoverable from the estate of the deceased plaintiff.
Ratio Decidendi
The court found that since the plaintiff died in August 2011 and no application for substitution was made within one year, the suit had abated by operation of law under Order 24 Rule 2 of the Civil Procedure Rules. The court further held that the defendant was entitled to costs, which are to be recovered from the estate of the deceased plaintiff. The absence of any steps to substitute the plaintiff or instructions from the deceased's family confirmed the abatement and justified the award of costs to the defendant.
Court Disposition
Suit abated against the defendant; costs awarded to the defendant to be recovered from the estate of the deceased plaintiff.
Orders
- The suit herein has abated against the Defendant.
- Costs to the Defendant to be recovered from the estate of the deceased plaintiff.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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KANGOGO CHEPKEITANY..................................................PLAINTIFF
V
LABAN CHELELGO..........................................................DEFENDANT
RULING
The Plaintiff, Kangogo Chepkeitany died in August, 2011. Counsel for the Plaintiff has not been able to substitute the plaintiff with a legal representative.
On 30th April 2013, counsels for both parties appeared before me. Counsel for the Plaintiff submitted that he did not have a client and had received no instructions from the family of the deceased to substitute the plaintiff. He averred that the suit had abated as more than a year had passed without an application to substitute being filed.
Counsel for the Defendant concurred with this line of submissions and prayed for costs.
No step having been taken since the death of the plaintiff to place the legal representative in the suit in place of the plaintiff, the suit has by virtue of Order 24 (2) of the Civil Procedure Rules which states:
“where within one year no application is made under sub-rule 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.”
abated as against the Defendant. Accordingly, I order as follows:
(1)The suit herein has abated against the Defendant.
(2)Costs to the Defendant to be recovered from the estate of the deceased plaintiff.
Dated, signedanddeliveredthis 2nd day of May, 2013.
L.N. WAITHAKA
JUDGE
PRESENT
Mr. Kahiga for Plaintiff
No appearance for defendant
Stephen Mwangi – Court Clerk