[2008] KEHC 3613 (KLR)
The court found that the applicant had provided sufficient cause for the delay in seeking revival and substitution, specifically citing the challenges in obtaining the chief's letter and lack of legal fees as genuine obstacles. The court recognized that financial constraints can hinder access to justice and that the...
Source-derived case information.
- Citation
- [2008] KEHC 3613 (KLR)
- Parties
- Appellant: Ndambo Ngungu; Respondent: Bernard Gitau Ngungu; Applicant: Esther Wanjiku Ndambo
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 59B of 1998
- Procedural Posture
- Civil Appeal / Ruling on Chamber Summons for Revival of Suit and Substitution of Plaintiff
- Outcome
- Application allowed; suit revived and substitution of plaintiff granted.
- Judges
- MM Kasango
- Legal Topics
- Abatement of Suit, Revival of Suit, Substitution of Parties, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndambo Ngungu
Appellant
Bernard Gitau Ngungu
Respondent
Esther Wanjiku Ndambo
Applicant
Procedural Posture
Civil Appeal / Ruling on Chamber Summons for Revival of Suit and Substitution of Plaintiff
Legal Issues
- 1 Whether sufficient cause was shown for the delay in applying for substitution of the plaintiff after abatement of the suit.
- 2 Whether the suit should be revived and Esther Wanjiku Ndambo appointed as the legal representative of the deceased plaintiff.
Ratio Decidendi
The court found that the applicant had provided sufficient cause for the delay in seeking revival and substitution, specifically citing the challenges in obtaining the chief's letter and lack of legal fees as genuine obstacles. The court recognized that financial constraints can hinder access to justice and that the applicant's reasons justified the failure to act within the statutory period. Consequently, the court exercised its discretion to revive the abated suit and substitute Esther Wanjiku Ndambo as the plaintiff in place of the deceased, Ndambo Ngungu.
Court Disposition
Application allowed; suit revived and substitution of plaintiff granted.
Orders
- The suit is revived.
- Esther Wanjiku Ndambo is appointed as the plaintiff in substitution of the original plaintiff Ndambo Ngungu.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Civil Appeal 59B of 1998
NDAMBO NGUNGU ……………………………….……………. APPELLANT
versus
BERNARD GITAU NGUNGU …………….…………...…….. RESPONDENT
RULING
The Chamber Summons dated 13th August 2007 when it came up for hearing on 28th January 2008 although the Respondent had been served there was no attendance on her behalf. That Chamber Summons seeks for the revival of this suit which abated after the death of the Plaintiff and further seeks that Esther Wanjiku Ndambo be appointed the legal representative of the original Plaintiff. In the affidavit in support of the application the Applicant stated that there was delay in making the present application which she attributed to delay experienced in getting the chief’s letter for purpose of administration cause and also due to a lack of fees for purposes of moving the court.
Order XXIII Rule 3(3) provides that where there is no application within one year for a legal representative to be made a party to a suit on behalf of a plaintiff and where the cause of action does not survive the death of the plaintiff or where the plaintiff is the sole plaintiff in the suit, such a suit abates. The present case the deceased Plaintiff was a sole Plaintiff. After his death on 25th of February, 1999 there was no application made for the appointment of another plaintiff within a year. Accordingly the suit abated on 25th February 2000. Order XXIII Rule 8(2) provides that the court can revive such a suit if the applicant does prove that he was prevented by sufficient cause from continuing with the suit. The applicant’s contention is that she did not have the legal fees to enable her make the necessary application for her appointment as a plaintiff. The court has considered the reasons given by the applicant in delaying to make that application and in the court’s view the reasons given are sufficient cause for a failure to do so. The court does appreciate that lack of legal fees can in some cases be a real challenge in proceeding with legal action. It undoubtedly does hinder some people from approaching the courts to enable them enforce their rights.
Accordingly I grant the following orders:-
1. I do hereby order that this suit be revived.
2. The court does hereby appoint Esther Wanjiku Ndambo as the plaintiff in substitution of the original plaintiff Ndambo Ngungu.
3. The costs of the chamber summons dated 13th August 2007 shall be in the cause.
DATED AND DELIVERED THIS 27TH DAY OF FEBRUARY, 2008.
MARY KASANGO
JUDGE