[2020] KEHC 9466 (KLR)
The court found that the applicant provided satisfactory reasons for the delay in seeking substitution and revival of the suit, specifically citing the trauma from the deaths of close family members and the delay in obtaining the Grant of Letters of Administration. The court held that these circumstances constituted...
Source-derived case information.
- Citation
- [2020] KEHC 9466 (KLR)
- Parties
- Applicant: Kasimu Munyithya Mwanjia (Suing as legal Representative and Administrator of the estate of John Vundi Kasimu); Respondent: Richard Macharia Kimamo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 251 of 2019
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time, Revival of Suit, and Substitution of Plaintiff
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Extension of Time, Revival of Suit, Substitution of Parties, Abatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kasimu Munyithya Mwanjia (Suing as legal Representative and Administrator of the estate of John Vundi Kasimu)
Applicant
Richard Macharia Kimamo
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time, Revival of Suit, and Substitution of Plaintiff
Legal Issues
- 1 Whether the court should extend time for the applicant to apply to substitute the plaintiff.
- 2 Whether the suit should be revived after abatement due to the plaintiff's death.
- 3 Whether the applicant has provided sufficient reasons for the delay in making the application for substitution and revival.
Ratio Decidendi
The court found that the applicant provided satisfactory reasons for the delay in seeking substitution and revival of the suit, specifically citing the trauma from the deaths of close family members and the delay in obtaining the Grant of Letters of Administration. The court held that these circumstances constituted sufficient cause to warrant the extension of time, revival of the suit, and substitution of the plaintiff. The application was therefore allowed, with costs awarded to the respondent.
Court Disposition
application allowed
Orders
- Time for the applicant to apply to substitute the plaintiff is extended.
- The suit is revived.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 251 OF 2015
KASIMU MUNYITHYA MWANJIA (Suing a legal
Representative and Administrators of the estate of
JOHN VUNDI KASIMU)..............................................................APPLICANT
VERSUS
RICHARD MACHARIA KIMAMO......................................RESPONDENT
RULING
1. The application dated 19th July, 2018 seeks orders that:
“1. That the court do extend time for the Applicant to apply to substitute the Plaintiff herein.
2. That this suit be revived.
3. That the Plaintiff herein be substituted for Francisca Kasimu Munyithya.
4. That the Applicant be allowed to amend the plaint in terms of the annexed amended plaint.
5. That costs of this application be in the cause.”
2. It is stated in the grounds and the affidavit in support that the Plaintiff passed away on 27th December, 2016 and therefore the suit has abated. That the deceased to whom these proceedings relate was the son to the Applicant. That the death of the son followed by the death of the Plaintiff who was Applicant’s husband left her traumatized and it took time to recover from the loss. That the Applicant thereafter applied for the Grant of Letters of Administration which was also delayed by the court and eventually obtained on 15th March, 2018. That an application dated 23rd March, 2018 seeking the revival of the suit was struck out, hence the current application.
3. The application is opposed. It is stated in the replying affidavit that no plausible reason has been given and that a similar application was earlier on dismissed by this court. That the application at hand is prejudicial to the Respondent and ought to be dismissed.
4. I have considered the application, the response to the same and the submissions filed by the respective counsel for the parties.
5. The ruling herein dated 17th July, 2018 reflects that an earlier application dated 20th March, 2018 which was similar to the instant application was struck out as no application had been made for the extension of time for the joinder, inter alia, of the Plaintiff’s legal representative (See for example the Court of Appeal’s exposition in Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others [2017] eKLR).
6. The Applicant has explained that she was traumatized by the death of two close family members. I find satisfactory reasons have been given for the delay in making the application. Consequently the application is allowed. Costs to the Respondent.
Date, signed and delivered at Nairobi this 26th day of Feb., 2020
B. THURANIRA JADEN
JUDGE