[2009] KEHC 2587 (KLR)
The court found that the applicant demonstrated sufficient cause for the delay in seeking substitution as the legal representative of the deceased appellant. The applicant was prevented from acting sooner due to the chief's refusal to issue a required letter, which was necessary for the grant of Letters of...
Source-derived case information.
- Citation
- [2009] KEHC 2587 (KLR)
- Parties
- Appellant: M’Mucheke Kiraithe; Respondent: Tyres Mbae Kiraithe; Applicant: Aphaxard Njue Mucheke
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 98 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Application for Revival and Substitution After Abatement Due to Death of Appellant
- Outcome
- Application allowed; appeal revived and applicant substituted as appellant.
- Judges
- MM Kasango
- Legal Topics
- Abatement of Appeal, Substitution of Parties, Revival of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’Mucheke Kiraithe
Appellant
Tyres Mbae Kiraithe
Respondent
Aphaxard Njue Mucheke
Applicant
Procedural Posture
Civil Appeal / Ruling on Application for Revival and Substitution After Abatement Due to Death of Appellant
Legal Issues
- 1 Whether the appeal should be revived after abatement due to the death of the appellant.
- 2 Whether the applicant has shown sufficient cause for delay in seeking substitution as legal representative.
- 3 Whether the applicant should be substituted for the deceased appellant.
Ratio Decidendi
The court found that the applicant demonstrated sufficient cause for the delay in seeking substitution as the legal representative of the deceased appellant. The applicant was prevented from acting sooner due to the chief's refusal to issue a required letter, which was necessary for the grant of Letters of Administration. On a balance of probabilities, this constituted sufficient cause under the Civil Procedure Rules for the court to exercise its discretion to revive the appeal and allow substitution. The court held that the technical omission in the prayer for substitution did not prejudice the respondent, and the interests of justice required that the appeal be revived and the applicant...
Court Disposition
Application allowed; appeal revived and applicant substituted as appellant.
Orders
- This appeal is hereby revived.
- Aphaxard Njue Mucheke is granted leave to substitute the deceased appellant in this appeal.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU
Civil Appeal 98 of 2002
M’MUCHEKE KIRAITHE ….…………………….. APPELLANT
VERSUS
TYRES MBAE KIRAITHE ……………………. RESPONDENT
APHAXARD NJUE MUCHEKE ………....……… APPLICANT
RULING
The Chamber Summons dated 25th March 2009 is brought by Aphaxard Njue Mucheke who obtained grant of Letters of Administration in respect of the estate of M’Mucheke Kiraithe deceased appellant. The appellant died on 5th August 2006. The applicant in his affidavit in support of the application stated he was delayed in obtaining the grant because the respondent, in this appeal, interfered through the chief who in turn refused to issue the applicant with a letter which was required by the court’s registry before his petition for grant of Letters of Administration be entertained.
He therefore prayed in his application that the court would revive the appellant’s appeal and would appoint him the legal representative of the appellant. The latter part of that prayer in my view is misplaced. What I believe the applicant seeks from this court is that he be substituted for the deceased appellant. The fact that he did not specifically make that prayer does not in my view prejudice the respondent.
The respondent opposed the application. In his replying affidavit, he deponed that the application lacked merit and was filed to defeat his application dated 8th February 2008 seeking for the court’s declaration that the appeal had abated. The respondent further denied interfering with the chief on the issue of chief’s letter. The respondent’s counsel in oral submissions argued that the reason given by the applicant for having failed to seek substitution was not good enough to lead to granting of orders sought. The applicant in support of the application relied on the case of Soni Vrs. Mohan Dairy (1968) E.A. 58 where the Court of Appeal held that an applicant had shown sufficient cause for the court to revive a suit that had abated because during the period when the suit abated a legal representative had not been appointed. Order XXII Rule 4(2) provides:-
“Where within one year no application is made under sub rule (1), the suit shall abate so far as the deceased plaintiff is concerned………”
Sub rule (1) of Order XXIII Rule 4 provides that where one or two or more plaintiffs dies and the cause of action does not survive or continue to the remaining plaintiff(s) those surviving plaintiff(s) can be appointed to continue the action. Where the plaintiff is the sole plaintiff who then dies, that Rule provides that a legal representative of the deceased plaintiff can be made a party to the action.
Order XXIIII Rule 10 provides that the word plaintiff in that Order applies to appellant. Order XXIII Rule 10 provides that the court can revive a suit that has abated on an application, where the applicant proves:-
“…that he was prevented by any sufficient cause from continuing the suit……”
The applicant before court has stated that his local chief refused to issue him with the letter required by the court registry when he sought appointment as a legal representative of deceased appellant’s estate. That does, in my view, on a balance of probability, prove the applicant was prevented from continuing this appeal for sufficient cause.
Accordingly, I am of the view that the application for substitution is merited. I grant the following orders:-
(1) That this appeal is hereby revived.
(2) That Aphaxard Njue Mucheke is granted leave to substitute the deceased appellant in this appeal
(3) The costs of the Chamber Summons dated 25th March 2009 shall be in the cause.
Dated and delivered at Meru this 16th day of July 2009.
MARY KASANGO
JUDGE