[2018] KEHC 5913 (KLR)
The court held that the suit abated in March 2017, twelve months after the respondent's death and no substitution having been made. Order 24 Rule 10 does not apply to execution of interlocutory orders, and any interim orders previously granted lapsed as they were not extended beyond February 2016 and could not...
Source-derived case information.
- Citation
- [2018] KEHC 5913 (KLR)
- Parties
- Applicant: Kenya Revenue Authority; Respondent: Ndori Absalom Majinga t/a Amari General Supplies
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 372 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- suit abated; no orders in force
- Judges
- CA Otieno
- Legal Topics
- Abatement of Suit, Substitution of Parties, Interlocutory Orders, Execution of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenya Revenue Authority
Applicant
Ndori Absalom Majinga t/a Amari General Supplies
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the suit abated following the death of the respondent and lack of substitution within 12 months.
- 2 Whether Order 24 Rule 10 applies to execution of interlocutory orders.
- 3 Whether any interim orders remained in force after the abatement of the suit.
Ratio Decidendi
The court held that the suit abated in March 2017, twelve months after the respondent's death and no substitution having been made. Order 24 Rule 10 does not apply to execution of interlocutory orders, and any interim orders previously granted lapsed as they were not extended beyond February 2016 and could not subsist beyond 12 months. Consequently, no valid order remained in force to support the respondent's application for release of money, and no party could benefit or be burdened by any order in the file until proper substitution. The application by the deceased respondent was misconceived and the matter stands abated with no enforceable orders remaining.
Court Disposition
suit abated; no orders in force
Orders
- This matter stands abated and there is no order now in force to be insisted upon by the parties or the bank.
- Let this order be extracted and served on the bank for purposes of information and appropriate action.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CIVIL APPLICATION NO. 372 OF 2015
KENYA REVENUE AUTHORITY............................................APPLICANT
VERSUS
NDORI ABSALOM MAJINGA
T/A AMARI GENERAL SUPPLIES.....................................RESPONDENT
R U L I N G
1. If the Respondent died in March 2016, then, the suit abated at the end 12th months after there was no application to substitute thedeceased. That fact is not altered by the provisions of Order 24 Rule 10 which in my understanding provides for situations where a suit is heard and concluded on merits and what is outstanding is the execution of a final orders. I hold that Order 24 Rule 10 does not apply to execution of Interim /interlocutory orders.
2. In any event, I have read the court file and noted that the last time the interim orders were extended was on the 21/12/2015. It follows therefore that the extension having been upto the 17/2/2016 the same needed a further extension to continue in existence, but were never extended on the 17/2/2016.
3. Further even if the orders had been extended on the 17/2/2016, such orders could only have a life of upto and not more than 12 months by operation of Order 40 Rule 6 Civil Procedure Rule.
4. Those being the facts as disclosed by the court record, I do consider that this suit did abate sometimes in March 2017 and when it did so abate, no order remained in force to invite the Application by the Respondent dated 13/12/2017.
5. In addition, the Respondent having died and no substitution having been made in his place by a personal representative, nobody, included the personal representative, can validly benefit or be burdened by a court order on this file prior to being made a party. I consider the Application alleged to be by the deceased and seeking release of some money to have been utterly misconceived and does not merit courts time being spent upon.
6. For clarify purposes, this matter stands abated and there is no order now in force to be insisted upon by the parties and even the bank upon which the orders of 11/12/2015 were served.
7. Let this order be extracted and served on the bank for purposes of information and appropriate action.
Dated and delivered this 4th day of June 2018.
P.J.O. OTIENO
JUDGE