[2018] KEELC 437 (KLR)
The court found that the application to set aside the dismissal and substitute the plaintiff was brought after an inordinate and unexplained delay of nearly four years. The applicant failed to provide any reasons for not seeking substitution within the statutory period, despite having obtained letters of...
Source-derived case information.
- Citation
- [2018] KEELC 437 (KLR)
- Parties
- Plaintiff: Mohammed Sadique Adam; Defendant: John Njuguna Nduati; Defendant: Joyce Wanjiru Kamau; Defendant: Commissioner of Lands
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 257of 20 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and for Substitution of Plaintiff
- Outcome
- application dismissed
- Judges
- AK Bor
- Legal Topics
- Abatement of Suit, Substitution of Parties, Setting Aside Dismissal, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Sadique Adam
Plaintiff
John Njuguna Nduati
Defendant
Joyce Wanjiru Kamau
Defendant
Commissioner of Lands
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and for Substitution of Plaintiff
Legal Issues
- 1 Whether the order dismissing the suit should be set aside due to non-attendance by the plaintiff.
- 2 Whether the applicant should be allowed to substitute the deceased plaintiff after abatement of the suit.
- 3 Whether the delay in bringing the application for substitution and setting aside was excusable.
Ratio Decidendi
The court found that the application to set aside the dismissal and substitute the plaintiff was brought after an inordinate and unexplained delay of nearly four years. The applicant failed to provide any reasons for not seeking substitution within the statutory period, despite having obtained letters of administration in 2015. The court held that the suit had abated by operation of law, and no sufficient cause was shown to justify revival or substitution. Consequently, the application was dismissed with costs to the defendants.
Court Disposition
application dismissed
Orders
- The application dated 5/12/2017 is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
MILIMANI LAW COURTS
E.L.C. CASE NO. 257 OF 2010
MOHAMMED SADIQUE ADAM……………………...…PLAINTIFF
VERSUS
JOHN NJUGUNA NDUATI……………………….....1ST DEFENDANT
JOYCE WANJIRU KAMAU….……………....……..2ND DEFENDANT
COMMISISIONER OF LANDS……..……..…….….3RD DEFENDANT
RULING
Through the application dated 5/12/2017 filed in court on 1/2/2018, the Plaintiff seeks to set aside the order made on 26/1/2015 dismissing his suit. The application is made on the grounds that the suit was dismissed when the Plaintiff failed to attend court. The Plaintiff died on 26/4/2014. His son, Habib Mohammed Sadique Adam wishes to substitute him as a Plaintiff. He obtained letters of administration ad litem on 22/7/2015.
The 1st Defendant opposed the application arguing that it was res judicata and that the suit had abated in April, 2015. The 2nd Defendant also opposed the application through the replying affidavit filed in court on 2/3/2018. She set out facts on the Plaintiff’s failure to prosecute the case leading to the dismissal of the suit on 27/1/2015. The 2nd Defendant avers that the deceased Plaintiff ought to have been substituted within a year of his death and that no reasons were given by the Plaintiff for the failure to substitute the Plaintiff before the suit abated. The Defendants maintained that a suit that has abated does not exist. They further argued that the delay of 3 years and 10 months in bringing this application was inordinate.
The court has considered the submissions of the parties and agrees with the Defendants that here was inordinate delay which is inexcusable in bringing this application. No reasons were given for the long delay in substituting the Plaintiff yet letters of administration were issued to the proposed Plaintiff way back in 2015.
The application dated 5/12/2017 is dismissed with costs to the Defendants
Dated and delivered at Nairobi this 28th day of November 2018.
K. BOR
JUDGE
In the presence of: -
Ms. C. Karimi holding brief for Mr. McCourt for the 2nd Defendant
Mr. V. Owuor- Court Assistant
No appearance for the Plaintiff, 1st and 3rd Defendants