[2011] KEHC 1750 (KLR)
The court found that the plaintiff had provided plausible reasons for the failure to serve the deceased defendant before his death, and that the abatement of the suit was not due to any fault of the plaintiff. The court further held that no prejudice had been demonstrated by the defendants that would result from the...
Source-derived case information.
- Citation
- [2011] KEHC 1750 (KLR)
- Parties
- Plaintiff: Nahashon Kariuki; Defendant: Silas Ogeto; Defendant: Charles Mokoya Maroko; Defendant: Yabesh Basweti
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 60 of 2008
- Procedural Posture
- Civil Suit / Ruling on Application to Revive Abated Suit and Substitute Defendants
- Outcome
- application to revive suit and substitute defendants allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Abatement of Suit, Revival of Suit, Substitution of Parties, Allocation of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nahashon Kariuki
Plaintiff
Silas Ogeto
Defendant
Charles Mokoya Maroko
Defendant
Yabesh Basweti
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Revive Abated Suit and Substitute Defendants
Legal Issues
- 1 Whether the abated suit should be revived after the death of the original defendant.
- 2 Whether the proposed substitution of parties is proper under the Civil Procedure Rules.
Ratio Decidendi
The court found that the plaintiff had provided plausible reasons for the failure to serve the deceased defendant before his death, and that the abatement of the suit was not due to any fault of the plaintiff. The court further held that no prejudice had been demonstrated by the defendants that would result from the revival of the suit. Accordingly, the court exercised its discretion to allow the revival of the suit and the substitution of the deceased defendant with the proposed parties, ensuring that the matter could proceed on its merits.
Court Disposition
application to revive suit and substitute defendants allowed
Orders
- The suit is revived.
- Charles Mokoya Maroko and Yabesh Basweti are substituted as defendants in place of Silas Ogeto, deceased.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELC CIVIL SUIT NO. 60 OF 2008
NAHASHON KARIUKI ………….......………………………..PLAINTIFF
VERSUS
SILAS OGETO ………………….…………………………… DEFENDANT
RULING
The plaintiff herein filed a suit against the defendant in respect of a commercial plot No. 162 Kimathi Riverbank Shopping Centre allocated by the City Council of Nairobi. The defendant was taken ill and hospitalized before summons upon him were served. He subsequently passed on before service was effected upon him. The plaintiff’s suit then abated. There is now before me an application by way of Chamber Summons under Order XXIII Rule8(2) and Order 1 Rule 10 of the Civil Procedure Rules seeking to revive this suit and that Charles Mokoya Maroko and Yabesh Basweti be substituted as the defendants in place of Silas Ogeto, now deceased.
The application is opposed. I have gone through the material before me and the submissions by both the learned counsel. The reasons advanced by the plaintiff leading to default on his part are plausible and there is no reason why he should be denied the opportunity to revive this suit which abated for no blame on his part. In any case, no prejudice has been alleged shall befall the defendants if the suit is revived.
Accordingly this application succeeds and each party shall bear his own costs.
Orders accordingly.
Dated, signed and delivered at Nairobi this 29th day of June, 2011
A.MBOGHOLI MSAGHA
JUDGE