[2013] KEHC 6157 (KLR)
The court found that the applicant provided a sufficient and excusable explanation for the delay in seeking revival of the suit and substitution of the defendant. The applicant did not know of the defendant's death until after the period for substitution had lapsed, and the court considered this a persuasive and...
Source-derived case information.
- Citation
- [2013] KEHC 6157 (KLR)
- Parties
- Plaintiff: Magayu Kiarie Magayu; Defendant: Elizabeth Wanjiru Njomo (deceased), substituted by John Francis Njomo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2795 of 1995
- Procedural Posture
- Civil Suit / Ruling on Application to Revive Suit and Substitute Defendant
- Outcome
- Application allowed; suit revived and substitution of defendant granted.
- Judges
- REA Ougo
- Legal Topics
- Revival of Suit, Substitution of Parties, Delay in Prosecution, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Magayu Kiarie Magayu
Plaintiff
Elizabeth Wanjiru Njomo (deceased), substituted by John Francis Njomo
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Revive Suit and Substitute Defendant
Legal Issues
- 1 Whether the suit should be revived after abatement due to the defendant's death.
- 2 Whether John Francis Njomo should be substituted as the legal representative of the deceased defendant.
- 3 Whether the delay in bringing the application for revival and substitution was excusable.
Ratio Decidendi
The court found that the applicant provided a sufficient and excusable explanation for the delay in seeking revival of the suit and substitution of the defendant. The applicant did not know of the defendant's death until after the period for substitution had lapsed, and the court considered this a persuasive and reasonable justification. Given the emotive nature of land disputes and the necessity for parties to be heard, the court exercised its discretion to allow the revival of the suit and substitution of the deceased defendant with her legal representative. The application was found to have merit and was granted accordingly.
Court Disposition
Application allowed; suit revived and substitution of defendant granted.
Orders
- The suit is revived.
- John Francis Njomo is substituted as the defendant in place of the deceased Elizabeth Wanjiru Njomo.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL SUIT NO 2795 of 1995
MAGAYU KIARIE MAGAYU........................................................PLAINTIFF
VERSUS
ELIZABETH WANJIRU NJOMO................................................DEFENDANT
RULING
The application is dated 8/10/12. It is a Notice of Motion seeking that the suit be revived and that John Francis Njomo the legal representative of Elizabeth Wanjiru Njomo who is now deceased be made a party to this suit in her place of time. It is brought under order 24(4) and (7) and order 50 (2) rule (6) of the Civil Procedure Rule and Section 1A, 1B and 3A of the Civil Procedure Act.
The plaintiff avers that they learnt of the defendant’s death in October 2010 and by then a year had passed. That they had no way of knowing that the defendant had died.
The application was opposed. The respondent argues that the applicant is guilty of indolence by delaying the prosecuting his suit and even bringing the application on time and that his allegations are not supported by any evidence. That there has been no sufficient reason for delay in persecuting the suit, revival of the same and lastly that the relief sought in the plaint are not capable of being granted since no consent of land balance was required by the Land Control Board Act.
Counsels filed written submissions which I have read and considered. Having considered what is depones and submitted I find that the applicant’s reason is excusable. The applicant has explained that he did not know of the defendant’s death. Land is an emotive issue and it is necessary that the parties are heard and a decision made. In my view the applicant’s reasons are persuasive as he has explained sufficiently why he could not file suit. I find merit in the application and grant prayer No. 1 of the application dated 8/10/12. Prayer 2 is also granted and costs shall be in the cause.
Orders accordingly.
Dated, signed and delivered this 17th May 2013.
R. E. OUGO
JUDGE
In the presence of:-
…………………………….……………………………………….For the Plaintiff/Applicant
………………………………………….………………….For the Defendant/ respondent
…………………………………………………..……………..…………………….Court Clerk