[2006] KEHC 178 (KLR)
The court found that the cause of action, being a partnership claim, survives the death of the first plaintiff. The applicant, as the legal representative, obtained the grant of letters of administration within the one-year period prescribed by law. The delay in making the application for substitution was explained...
Source-derived case information.
- Citation
- [2006] KEHC 178 (KLR)
- Parties
- Plaintiff: Kanja Rwario; Plaintiff: Justin Murimi; Plaintiff: Ngima Gachanja; Plaintiff: Wakini Muchiri Karuiru; Plaintiff: Sarah Wairimu Kangi; Defendant: Peris Njeri Wanjohi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 49 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Revive Suit and Substitution of Party
- Outcome
- application allowed; suit revived and substitution granted
- Legal Topics
- Revival of Suit, Substitution of Parties, Partnership Disputes, Mesne Profits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kanja Rwario
Plaintiff
Justin Murimi
Plaintiff
Ngima Gachanja
Plaintiff
Wakini Muchiri Karuiru
Plaintiff
Sarah Wairimu Kangi
Plaintiff
Peris Njeri Wanjohi
Defendant
Procedural Posture
Civil Case / Ruling on Application to Revive Suit and Substitution of Party
Legal Issues
- 1 Whether the suit can be revived after abatement due to the death of the first plaintiff.
- 2 Whether the applicant has shown sufficient cause for the delay in making the application for substitution.
- 3 Whether the cause of action survives the death of the first plaintiff.
Ratio Decidendi
The court found that the cause of action, being a partnership claim, survives the death of the first plaintiff. The applicant, as the legal representative, obtained the grant of letters of administration within the one-year period prescribed by law. The delay in making the application for substitution was explained and not inordinate, as it was occasioned by the process of obtaining the grant. The court held that sufficient cause for the delay had been demonstrated, and therefore, the suit could be revived and the applicant substituted in place of the deceased plaintiff. The application was allowed, with costs awarded to the respondent.
Court Disposition
application allowed; suit revived and substitution granted
Orders
- The application to revive the suit is allowed.
- The applicant is substituted as the legal representative of the deceased first plaintiff.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU Civil Case 49 of 2002
KANJA RWARIO …………………………….…...………………1ST PLAINTIFF
JUSTIN MURIMI…………………………………....………………2ND PLAINTIFF
NGIMA GACHANJA………………………..….….………………3RD PLAINTIFF
WAKINI MUCHIRI KARUIRU……………..…….……..…………4TH PLAINTIFF
SARAH WAIRIMU KANGI……………………….…..……………5TH PLAINTIFF
VERSUS
PERIS NJERI WANJOHI……………….....………………………..DEFENDANT
RULING
Application dated 20/4/2006 seeks to revive suit by the legal representative of first plaintiff against the defendant. The grounds are set out on the application. The first plaintiff died on 12/4/2005. The deceased plaintiff was survived by the applicant who has taken out a grant as personal representative of the deceased. That the cause of action survives the death of the plaintiff that the letters of administration were delayed.
The application is also supported by affidavit of the applicant. The plaint is in respect of partnership dealings between the plaintiff and the defendant. The prayers are for a declaration that plot No. 10 Kiangai Market is a partnership plot between the plaintiffs and the defendant and 5/6 shares should be transferred to the plaintiffs payment of mesne profits and interest thereon. There is no doubt the cause of action survives the death of the first plaintiff and other plaintiffs. The issue now is whether the applicant can revive the suit and substitute herself in place of her father.
Order 23 CPC deals with consequences of death of party. Section 3 (1) provides that an application may be made to make a party the legal representative of the deceased. However 3 (2) the application has to be made within one year failing which the suit shall abate.
In this case death occurred on 12/4/2005 and Limited Grant to pursue this case was issued on 9/3/2006 just before the expiration of the one year Rule 8 (2) empowers the court on application to revive the suit after one year if it is proved that the delay was caused by sufficient cause. In this case the delay is not inordinate and it is explained. The cause of action survives the death being a partnership claim.
I therefore find that the applicant has proved that the application was delayed by sufficient cause.
I allow the application and grant orders as prayed. However the costs of this application shall be paid to the Respondent.
Dated on this 4th August, 2006.
J. N. KHAMINWA
JUDGE
4/8/2006
Khaminwa -Judge
Njue -Clerk
Ms Wairimu for Magee and Magee
Mr. Okwaro H/B for Kinyua Kiama
Ruling read in open court in their presence