[2008] KEHC 2244 (KLR)
The court found that the preliminary objections lacked merit. The act of an advocate swearing the affidavit in support of the application to revive the abated suit did not render the application incompetent, as the facts in question (the death of the defendant and the delay) were not contentious. The right to revive...
Source-derived case information.
- Citation
- [2008] KEHC 2244 (KLR)
- Parties
- Plaintiff: Kenya Farmers Co-op. Union Ltd.; Defendant: Charles Murgor (deceased, through administrators)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1671 of 1994
- Procedural Posture
- Civil Case / Ruling on Preliminary Objections to Application to Revive Abated Suit
- Outcome
- Preliminary objections overruled with costs to the applicant.
- Legal Topics
- Abatement of Suit, Revival of Suit, Affidavit by Advocate, Preliminary Objection, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Farmers Co-op. Union Ltd.
Plaintiff
Charles Murgor (deceased, through administrators)
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objections to Application to Revive Abated Suit
Legal Issues
- 1 Whether the application to revive the abated suit is fatally defective due to the affidavit being sworn by an advocate.
- 2 Whether the application is incompetent for non-compliance with Order 50 rule 15 of the Civil Procedure Code.
- 3 Whether the right to revive an abated suit is limited by time under Order 23 rule 8 (2) of the Civil Procedure Code.
Ratio Decidendi
The court found that the preliminary objections lacked merit. The act of an advocate swearing the affidavit in support of the application to revive the abated suit did not render the application incompetent, as the facts in question (the death of the defendant and the delay) were not contentious. The right to revive an abated suit under Order 23 rule 8 (2) of the Civil Procedure Code is not limited by time, and the application was therefore properly before the court. The preliminary objections regarding procedural defects and the competence of the affidavit were overruled, allowing the application to proceed to hearing on its merits.
Court Disposition
Preliminary objections overruled with costs to the applicant.
Orders
- The preliminary objections are overruled with costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1671 of 1994
KENYA FARMERS CO-OP. UNION LTD. ………..……. PLAINTIFF
VERSUS
CHARLES MURGOR …………………………………. DEFENDANT
R U L I N G
Application dated 11/10/05 seeks orders to revive the abated suit as against the administrators of the estate of Charles Murgor, deceased, the defendant. The application is brought under Order XXIII rule 4 (3), 8 (2) and 12 of Civil Procedure Code.
The application is based on grounds set out in the application that by a Ruling of court made on 22/7/2005 the Court held that the suit had abated and there was no application to revive the same. The claim amounted 9,026,337. 75 with interest as at 1/12/1993. Further the administrators obtained a grant of administration in the estate of the deceased in Succesion Cause No.199 of 1995. And that the death occurred on 23/4/1995.
To this application there are several preliminary objections filed, that the application is fatally defective, the supporting affidavit offends Order 18, Civil Procedure Code, and that this application has been overtaken by events and does not comply with Order 50 rule 15, Civil Procedure Code. These objections were argued first. That the suit is abated is not disputed. It was found to be so by this court in its ruling made on 22/7/2005 aforesaid.
The death occurred on 23/4/1995 and judgment was entered on 29/11/2001 after hearing some witness by Hon. Onyango Otieno, J. (as he then was). The respondent’s argument is that the suit having already abated there is no suit to revive and the supporting affidavit being sworn by an advocate is not competent. It should have been made by the plaintiff who is making the application. Furthermore, the application offends Order 50 rule 15. The advocate did not disclose which limb of that Order 50 rule 15 is breached but from a perusal of the application it appears as if it was Rule 15 (2) which was breached. Mr. Ruto relied on the ruling in Milimani HCC No.89 of 2000 where the court stated that an advocate should not swear an affidavit in contentious matters on behalf of the client. An advocate should not enter into the arena. In this matter I do not think that the issue of reviving an abated suit is a contentious matter. The death of a party cannot be contentious and the issue of delay is for explanation to court at the hearing of application.
I therefore do not find that the act of swearing the affidavit by advocate renders the application incompetent. The right for a plaintiff to revive a suit is granted under Section 8 (2) of Order 23, Civil Procedure Code and it is not limited in time. I do not find the submission of the counsel merited. On the whole the preliminary objection has no merit and the same are over-ruled with costs.
DATED at NAIROBI this 8th day of July 2008.
JOYCE N. KHAMINWA
JUDGE