[2007] KEHC 2155 (KLR)
The court found that the widow had taken timely steps to obtain a limited grant of letters of administration, indicating her intention to be substituted as plaintiff. The delay in making the application for substitution and revival was attributed to the mistakes of her advocates, not to any fault or indolence on her...
Source-derived case information.
- Citation
- [2007] KEHC 2155 (KLR)
- Parties
- Plaintiff: Lawi Duda, Abdulaziz Al-Kithiri and 20 others; Defendant: Bamburi Cement Limited; Applicant: Edith Ferah Temo (widow of Harold Kenneth Temo Chambe, deceased)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 528 of 1998
- Procedural Posture
- Civil Suit / Ruling on Application for Revival and Substitution After Abatement Due to Plaintiff's Death
- Outcome
- Application for revival and substitution allowed; applicant to pay defendant's costs for this and earlier withdrawn application.
- Legal Topics
- Abatement of Suit, Revival of Suit, Substitution of Parties, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawi Duda, Abdulaziz Al-Kithiri and 20 others
Plaintiff
Bamburi Cement Limited
Defendant
Edith Ferah Temo (widow of Harold Kenneth Temo Chambe, deceased)
Applicant
Procedural Posture
Civil Suit / Ruling on Application for Revival and Substitution After Abatement Due to Plaintiff's Death
Legal Issues
- 1 Whether the court should revive the abated claim of the deceased plaintiff.
- 2 Whether the widow of the deceased plaintiff should be substituted as plaintiff in place of the deceased.
- 3 Whether the delay in making the application for substitution and revival should be excused.
Ratio Decidendi
The court found that the widow had taken timely steps to obtain a limited grant of letters of administration, indicating her intention to be substituted as plaintiff. The delay in making the application for substitution and revival was attributed to the mistakes of her advocates, not to any fault or indolence on her part. The court exercised its discretion to allow the application for revival and substitution, holding that counsel's errors should not prejudice the applicant. However, the applicant was ordered to pay the defendant's costs for both the present and earlier withdrawn application.
Court Disposition
Application for revival and substitution allowed; applicant to pay defendant's costs for this and earlier withdrawn application.
Orders
- The application for revival and substitution is allowed as prayed.
- The applicant shall pay the defendant's costs of this application and the earlier withdrawn application.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Civil Suit 528 of 1998
LAWI DUDA
ABDULAZIZ AL-KITHIRI AND 20 OTHERS ………………PLAINTIFFS
V E R S U S
BAMBURI CEMENT LIMITED …………………………… DEFENDANT
R U L I N G
The sixth plaintiff, Harold Kenneth Temo Chambe, died on the 12th February 2004. His claim in this suit therefore abated on 11th February 2005. But the court has jurisdiction, for good cause, to revive it. The deceased’s widow, Edith Ferah Temo, was granted a limited grant of letters of administration on 18th August 2004 and instead of applying to be substituted soon thereafter, she made that application on 10th June 2005. At that time an application for substitution was untenable, as the claim had already abated. She was therefore forced to withdraw that application and has now applied for revival and substitution. The defendant says the widow has been indolent and her application should therefore be dismissed.
Having considered the matter I find that the widow was minded of being substituted in place of her late husband and that is why she obtained a limited grant of letters of administration long before the claim abated. It appears to me that it is a result of her advocates’ blunders that the application was not made in time. Even when they came round to making one they made a wrong one and were forced to withdraw it.
In the circumstances counsel’s mistakes cannot be blamed on the widow and in exercise of my discretion I allow this application as prayed. The Applicant shall however pay the defendant’ s costs of this application and those of the earlier one, which was withdrawn.
DATED and delivered this 12th day of July 2007.
D.K. MARAGA
JUDGE