[2021] KEHC 12855 (KLR)
The court found that the 1st Defendant, having died, should be substituted by his widow to ensure the matter proceeds to judgment without abatement. The judge acknowledged a personal conflict of interest, making her unable to write the judgment, and therefore recused herself from further involvement. The file was...
Source-derived case information.
- Citation
- [2021] KEHC 12855 (KLR)
- Parties
- Plaintiff: Mabel Wakasa Asumba; Defendant: John Mwaura Wainaina; Defendant: Wakomo Services Limited; Defendant: Hesbon Ahiro Asumba; Defendant: Banu Salyani; Defendant: Trust Bank (In Liquidation)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 93 of 2001
- Procedural Posture
- Civil Case / Post Hearing, Pre Judgment, Substitution of Party Due to Death
- Outcome
- Application for substitution allowed; judge recused; matter to be reallocated for judgment.
- Legal Topics
- Substitution of Parties, Conflict of Interest, Judicial Recusal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mabel Wakasa Asumba
Plaintiff
John Mwaura Wainaina
Defendant
Wakomo Services Limited
Defendant
Hesbon Ahiro Asumba
Defendant
Banu Salyani
Defendant
Trust Bank (In Liquidation)
Defendant
Procedural Posture
Civil Case / Post Hearing, Pre Judgment, Substitution of Party Due to Death
Legal Issues
- 1 Whether the 1st Defendant should be substituted following his death.
- 2 Whether the trial judge should recuse herself due to a conflict of interest.
Ratio Decidendi
The court found that the 1st Defendant, having died, should be substituted by his widow to ensure the matter proceeds to judgment without abatement. The judge acknowledged a personal conflict of interest, making her unable to write the judgment, and therefore recused herself from further involvement. The file was directed to be mentioned before the Presiding Judge for reallocation to another judge for judgment writing. The court made no order as to costs for the application.
Court Disposition
Application for substitution allowed; judge recused; matter to be reallocated for judgment.
Orders
- The application dated 17/11/2020 is allowed.
- The 1st Defendant is substituted with his widow, Margaret Wambura Thuku.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & TAX DIVISION
CIVIL CASE NO. 93 OF 2001
MABEL WAKASA ASUMBA..........................................................PLAINTIFF
VERSUS
JOHN MWAURA WAINAINA..............................................1ST DEFENDANT
WAKOMO SERVICES LIMITED......................................2ND DEFENDANT
HESBON AHIRO ASUMBA................................................3RD DEFENDANT
BANU SALYANI...................................................................4TH DEFENDANT
TRUST BANK (IN LIQUIDATION)...................................5TH DEFENDANT
RULING
1. The application dated 17/11/2020 is hereby allowed.
2. The 1st Defendant is substituted with his widow, Margaret Wambura Thuku.
3. There shall be no orders as to costs.
4. Although this matter was fully heard and submissions made, whereinonly writing of the judgment is pending, I am unable to write the judgment due to personal conflict of interest.
5. Accordingly, the file shall be mentioned before Hon. Mabeya, J, the Presiding Judge of the Division, to allocate a Judge to write the judgment as the trial Judge has since left the Division. Mention on 21/04/2021
6. Meanwhile, the proceedings to be typed.
DATED AND DELIVERED AT NAIROBI THIS 13TH APRIL, 2021.
G.W.NGENYE-MACHARIA
JUDGE
In the presence of:
1. Anne Mbugua for the 1st and 2nd Defendants
2. Amolo Kibaya for the Plaintiff
3. No appearance for 3rd and 4th Defendants
4. Mr. Bett h/b for Kemingich for the 5th Defendant