[2008] KEHC 3149 (KLR)
The court found that the plaintiff's cause of action against the first defendant subsisted despite the death of the second defendant. Since no grant of representation had been applied for in respect of the deceased defendant's estate and the application was unopposed, the court granted the orders sought, allowing...
Source-derived case information.
- Citation
- [2008] KEHC 3149 (KLR)
- Parties
- Plaintiff: Kasmil Ondieki; Defendant: Clerk Kisii Municipal Council; Defendant: Andrew N. Onguti
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 280 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Continue Suit Against Surviving Defendant
- Outcome
- Application granted; suit to continue against surviving defendant.
- Legal Topics
- Survival of Actions, Substitution of Parties, Death of Defendant, Civil Suit Continuation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kasmil Ondieki
Plaintiff
Clerk Kisii Municipal Council
Defendant
Andrew N. Onguti
Defendant
Procedural Posture
Civil Case / Ruling on Application to Continue Suit Against Surviving Defendant
Legal Issues
- 1 Whether the cause of action survives against the first defendant after the death of the second defendant.
- 2 Whether an entry should be made to continue the suit against the surviving defendant.
Ratio Decidendi
The court found that the plaintiff's cause of action against the first defendant subsisted despite the death of the second defendant. Since no grant of representation had been applied for in respect of the deceased defendant's estate and the application was unopposed, the court granted the orders sought, allowing the suit to continue against the surviving defendant only.
Court Disposition
Application granted; suit to continue against surviving defendant.
Orders
- Entry to be made on the record that the cause of action continues against the first defendant.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL CASE 280 OF 2002
KASMIL ONDIEKI ……………………………….……. PLAINTIFF
VERSUS
1. CLERK KISII MUNICIPAL COUNCIL
2. ANDREW N. ONGUTI…................................…… DEFENDANT
RULING
The plaintiff filed an application dated 6th March, 2007 pursuant to the provisions of Order XXIII rules 2 and 4 of the Civil Procedure Rules. He prayed that an entry be made on the record to the effect that the cause of action continues against the surviving defendant, the first defendant, the second defendant having died on 8th June, 2004.
The plaintiff had sued the defendants for allegedly interfering with his property known as DARAJA MBILI/PLOT 15. The plaintiff’s case had been closed at the time of the second defendant’s demise. Since then, no grant of representation had been applied for by any one. It is not in dispute that the plaintiff’s cause of action against the first defendant is still subsisting despite the demise of the second defendant. The plaintiff’s application was not opposed. I grant the orders as sought. There will be no order as to costs.
DATED, SIGNED and DELIVERED at KISII this 23rd day of April, 2008.
D. MUSINGA
JUDGE.
Delivered in open court in the presence of
Mr. Ombachi for the plaintiff
N/A for the defendant
D. MUSINGA
JUDGE