[2019] KEELC 3851 (KLR)
The court found that the plaintiff's failure to prosecute the suit was occasioned by circumstances beyond his control, namely long-term illness, old age, and subsequent death, as well as the death of his advocate. The applicant, having obtained letters of administration, demonstrated sufficient cause for the delay...
Source-derived case information.
- Citation
- [2019] KEELC 3851 (KLR)
- Parties
- Plaintiff: Kiarie Wainaina; Defendant: Njeri Njoroge (as Administrator of the estate of Naomi Wanjiru Njoroge); Applicant: Dominic Njuguna Kiarie
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 116 of 2007
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal and for Substitution of Parties
- Outcome
- Application allowed; suit reinstated; parties substituted; costs to defendant.
- Legal Topics
- Reinstatement of Suit, Substitution of Parties, Want of Prosecution, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiarie Wainaina
Plaintiff
Njeri Njoroge (as Administrator of the estate of Naomi Wanjiru Njoroge)
Defendant
Dominic Njuguna Kiarie
Applicant
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal and for Substitution of Parties
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be set aside.
- 2 Whether the suit should be reinstated and parties substituted with their respective administrators.
Ratio Decidendi
The court found that the plaintiff's failure to prosecute the suit was occasioned by circumstances beyond his control, namely long-term illness, old age, and subsequent death, as well as the death of his advocate. The applicant, having obtained letters of administration, demonstrated sufficient cause for the delay and took prompt steps to revive the suit upon being appointed administrator. The court held that it would be in the interest of justice to allow the parties to ventilate their claims at trial. Accordingly, the dismissal order was set aside, the suit reinstated, and the parties substituted as prayed. The court also directed compliance with pre-trial procedures to facilitate...
Court Disposition
Application allowed; suit reinstated; parties substituted; costs to defendant.
Orders
- The order made on 26/1/2012 dismissing the plaintiff's suit is set aside.
- The suit is reinstated.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CASE NO.116 OF 2007(O.S)
KIARIE WAINAINA..............................................................PLAINTIFF
VERSUS
NJERI NJOROGE (Sued as the Administrator of the estate of
NAOMI WANJIRU NJOROGE........................................DEFENDANT
AND
DOMINIC NJUGUNA KIARIE..........................................APPLICANT
RULING
The Applicant filed the application dated 29/3/2018 seeking to set aside the order made on 26/1/2012 by Lady Justice P. Nyamweya dismissing this suit. The Applicant also seeks an order to reinstate the suit, and substitute the Plaintiff with his administrator, Dominic Njuguna Kiarie, and also substitute the Defendant with her administrator, Damaris Mwihaki Mwaura.
The application is based on grounds that the Plaintiff’s inaction was occasioned by his long term illness suffering from cancer and old age, and his untimely demise on 29/6/2017. Further, that the Plaintiff’s previous advocate, G. Kamonde Advocate died, and it was therefore difficult for the Applicant to access the physical file for purposes of taking further steps in the suit.
The application was supported by the affidavit of Dominic Njuguna Kiarie sworn on 29/3/2018. He deponed that this suit was commenced by the Plaintiff who is now dead, on 18/5/2007 and was dismissed on 26/1/2012 for want of prosecution. He explained that the Plaintiff’s long illness and old age prevented him from prosecuting the suit. He annexed a copy of the Plaintiff’s death certificate, which shows that the Plaintiff died of cancer aged 88 years on 29/6/2017. He deponed further that his father’s advocate, Mr. G. Kamonde also died making it difficult to make follow-ups on the matter. He was issued letters of administration ad litem in Kiambu Succession Cause No.18 of 2018, on 14/2/2018, which enabled him to take action in this suit. He averred that the Defendant also died in the course of proceedings and was substituted with her administrator, Njeri Njoroge, who has since died as well. He annexed a copy of the grant of letters of administration issued to Damaris Mwihaki Mwaura in Kiambu Succession Cause No. 224 of 2017 in respect of the estate of Naomi Wanjiru Njoroge and asked the court to substitute her as the Defendant. The application was not opposed by the Defendant.
The court has considered the application, supporting affidavit, annexures thereto and oral submissions by counsel for the Applicant. The court record reflects that the court served a notice to show cause under order 17 Rule 2(1) & 4 of the Civil Procedure Rules on G. Kamonde & Co. Advocates on 17/1/2012, which was on record for the Plaintiff at the time. It is not clear when G. Kamonde died and whether he was the sole proprietor of the firm. It is also not clear whether the Plaintiff was notified of the notice to show cause by the said firm. The record shows that the notice to show cause was served on the Defendant by way of registered post. It is not clear whether the Defendant received the said notice. The matter came up for notice to show cause why the suit should not be dismissed for want of prosecution on 26/1/2012, then it was dismissed in the absence of both parties.
The court is satisfied that it would be in the interest of justice for the parties to get an opportunity to ventilate their claims at the trial. The order made on 26/1/2012 dismissing the Plaintiff’s suit is set side. The suit is reinstated and parties substituted as prayed. The Plaintiff will pay the Defendant the costs of the application. Parties are directed to comply with the provisions of Order 11 of the Civil Procedure Rules within 21 days of the date of this ruling to facilitate the expeditious disposal of the suit failing which the suit will stand dismissed.
Dated and delivered at Nairobi this 1st day of April 2019
K.BOR
JUDGE
In the presence of:-
Mr. V.Owuor- Court Assistant
Ms. F. Njoroge for the Plaintiff
No appearance for the Defendant