[2008] KEHC 728 (KLR)
The court found that the Applicant, Maria Njeri Kariuki, had demonstrated sufficient cause for her failure to apply for substitution within the prescribed period, as she was delayed by the corrupt demands of her local chief in obtaining a necessary letter for the grant of representation. The court accepted her...
Source-derived case information.
- Citation
- [2008] KEHC 728 (KLR)
- Parties
- Applicant: Maria Njeri Kariuki; Plaintiff: Hannah Wanjiku Kiri; Defendant: Paulina Gachambi Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 457 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Revival and Substitution
- Outcome
- Application allowed; suit revived and substitution granted.
- Legal Topics
- Abatement of Suit, Revival of Suit, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maria Njeri Kariuki
Applicant
Hannah Wanjiku Kiri
Plaintiff
Paulina Gachambi Kariuki
Defendant
Procedural Posture
Civil Case / Ruling on Application for Revival and Substitution
Legal Issues
- 1 Whether the suit by the 2nd Plaintiff, which has abated due to her death, should be revived.
- 2 Whether the Applicant should be substituted in place of the deceased 2nd Plaintiff as her legal representative.
Ratio Decidendi
The court found that the Applicant, Maria Njeri Kariuki, had demonstrated sufficient cause for her failure to apply for substitution within the prescribed period, as she was delayed by the corrupt demands of her local chief in obtaining a necessary letter for the grant of representation. The court accepted her explanation as credible and held that, in the interests of justice, the abated suit should be revived and the Applicant substituted as the legal representative of the deceased 2nd Plaintiff. The court exercised its discretion under Order 23 of the Civil Procedure Rules to grant the orders sought, noting the absence of opposition from the Defendant.
Court Disposition
Application allowed; suit revived and substitution granted.
Orders
- The 2nd Plaintiff's suit is revived.
- Maria Njeri Kariuki is substituted in place of the deceased 2nd Plaintiff, Hannah Wanjiku Kiri.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 457 of 2005
1. MARIA NJERI KARIUKI
2. HANNAH WANJIKU KIRI ...................................PLAINTIFFS
V E R S U S
PAULINA GACHAMBI KARIUKI ..........................DEFENDANT
R U L I N G
This is an application (by chamber summons dated 21st July, 2005) brought under Order 23, rules 3(1) and 8(2) of the Civil Procedure Rules (the Rules). It seeks orders for revival of the 2nd Plaintiff’s suit which has abated, and for substitution of the Applicant, MARIA NJERI KARIUKI, in place of the deceased 2nd Plaintiff, HANNAH WANJIKU KIRI. The application is supported by the affidavit of the Applicant.
The application is unopposed in that no papers have been filed in response thereto despite service. I have read the supporting affidavit and also given due consideration to the submissions of the learned counsel for the Applicant.
The 2nd Plaintiff having died on 22nd August 2006 and there being no application for substitution within one year of that date, the 2nd Plaintiff’s suit abated. The Applicant is the legal representative of the deceased 2nd Plaintiff as she has a grant of representation in that behalf duly issued by a competent court. To succeed in this application she must prove that she was prevented by a sufficient cause from continuing the suit.
The Applicant has deponed that she was prevented from timeously applying for a grant of representation by the demands of her corrupt local chief who wanted to be bribed in order to issue a letter that is normally required by the court when one is seeking a grant of representation. I believe the Applicant. She has therefore proved on balance that she was prevented by a sufficient cause from continuing with suit. The court is thus duty bound to revive the 2nd Plaintiff’s suit, and it is hereby revived. The Applicant is also hereby substituted in place of the deceased 2nd Plaintiff. Costs of this application shall be in the cause. It is so ordered.
DATED AT NAIROBI THIS 17TH DAY, OF NOVEMBER, 2008
H. P. G. WAWERU
J U D G E
DELIVERED THIS 21ST DAY OF NOVEMBER, 2008