[2008] KEHC 2279 (KLR)
The court found that although the suit had abated due to the death of the defendant in 1998, it retains the power to revive such a suit. The applicant, having obtained a grant over the deceased's estate, is a proper party for substitution. The opposition by the plaintiff's counsel was found to be procedurally and...
Source-derived case information.
- Citation
- [2008] KEHC 2279 (KLR)
- Parties
- Plaintiff: Kathu Kameme Peter; Defendant: Fredrick Kigo Mbogo (deceased); Applicant: Faith Wambui Ngari
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 25 of 1986
- Procedural Posture
- Civil Case / Ruling on Application for Substitution and Revival of Suit
- Outcome
- Application allowed; suit revived and substitution granted.
- Judges
- MM Kasango
- Legal Topics
- Abatement of Suit, Substitution of Parties, Revival of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kathu Kameme Peter
Plaintiff
Fredrick Kigo Mbogo (deceased)
Defendant
Faith Wambui Ngari
Applicant
Procedural Posture
Civil Case / Ruling on Application for Substitution and Revival of Suit
Legal Issues
- 1 Whether the suit against the deceased defendant should be revived after abatement.
- 2 Whether the applicant should be substituted in place of the deceased defendant.
Ratio Decidendi
The court found that although the suit had abated due to the death of the defendant in 1998, it retains the power to revive such a suit. The applicant, having obtained a grant over the deceased's estate, is a proper party for substitution. The opposition by the plaintiff's counsel was found to be procedurally and substantively deficient, as it was based on unverified claims and submissions from the bar. The court exercised its discretion to revive the suit and substitute the applicant in place of the deceased defendant, ensuring the matter could proceed to determination on its merits.
Court Disposition
Application allowed; suit revived and substitution granted.
Orders
- The suit as against the defendant Fredrick Kigo Mbogo (deceased) is revived.
- Faith Wambui Ngari is substituted in place of Fredrick Kigo Mbogo (deceased) as defendant.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Civil Case 25 of 1986
KATHU KAMEME PETER ………………………… PLAINTIFF
Versus
FREDRICK KIGO MBOGO …………….………. DEFENDANT
RULING
The application dated 14th March 2008 is brought by Faith Wambui Ngari. By that application the applicant seeks that she be substituted in place of the defendant Fredrick Kigo Mbogo deceased. The defendant died on 19th December 1998. The applicant obtained grant over this estate. She therefore sought orders as prayed.
The application was opposed. The opposition raised by counsel for the plaintiff was difficult to follow and amounted to evidence being given from the bar. It was difficult to follow how an advocate who said she appeared for the plaintiff could then submit that that plaintiff is deceased. If that is correct since the court has no way of confirming the same, then that advocate does not have instructions because she cannot, after all be instructed by a deceased client. The other submissions in opposition which amounted to counsel giving evidence from the bar was that this case had been the subject of an appeal and substitution could not therefore be ordered. Counsel did also argue that the suit had abated and therefore substitution could not be ordered. It is correct that the defendant passed away in 1998. It is also correct that the suit has abated. The court however does have power to revive a suit that has abated. Accordingly I do hereby order that the suit as against the defendant Fredrick Kigo Mbogo deceased be and is hereby revived. Further I do grant the order that Faith Wambui Ngari be and is hereby substituted in place of Fredrick Kigo Mbogo deceased. There shall be no orders as to costs in respect of the chamber summons dated 14th March 2008.
DATED AND DELIVERED THIS 26TH DAY OF JUNE 2008.
MARY KASANGO
JUDGE