[2024] KEELC 1589 (KLR)
The court found that the suit had abated following the deaths of both the plaintiff and defendant, and there was no evidence of any application for substitution, enlargement of time, or revival of the suit. The applicant failed to explain the inordinate delay from the time of abatement and destruction of the file to...
Source-derived case information.
- Citation
- [2024] KEELC 1589 (KLR)
- Parties
- Applicant: Bessy Nkirote Ndegwa (Suing as the legal representative of John Degwa (Deceased)); Respondent: Stephen Kinyua Maranya (Sued as the legal representative of Fredrick M’Maranya - Deceased)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E002 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reconstruction of File
- Outcome
- application dismissed with costs
- Judges
- CK Nzili
- Legal Topics
- Abatement of Suit, Reconstruction of Court File, Substitution of Parties, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bessy Nkirote Ndegwa (Suing as the legal representative of John Degwa (Deceased))
Applicant
Stephen Kinyua Maranya (Sued as the legal representative of Fredrick M’Maranya - Deceased)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Reconstruction of File
Legal Issues
- 1 Whether the court should order the reconstruction of Meru H.C Civil Case No. 89 of 1988 after the original file was destroyed.
- 2 Whether the suit had abated following the death of both the plaintiff and defendant and absence of substitution or revival.
- 3 Whether the applicant's delay in seeking revival or substitution was explained or excusable.
Ratio Decidendi
The court found that the suit had abated following the deaths of both the plaintiff and defendant, and there was no evidence of any application for substitution, enlargement of time, or revival of the suit. The applicant failed to explain the inordinate delay from the time of abatement and destruction of the file to the filing of the present application. The court held that it cannot revive an already abated suit through an application for reconstruction of the file, as this would circumvent the mandatory provisions of Order 24 of the Civil Procedure Rules. The application for reconstruction was therefore dismissed as futile and without merit.
Court Disposition
application dismissed with costs
Orders
- The application for reconstruction of Meru H.C Civil Case No. 89 of 1988 is dismissed.
- The applicant shall bear the costs of the application.
Full Case Text
Judgment text and source record
23 paragraphs
Ndegwa (Suing as the legal representative of John Degwa (Deceased) v Maranya (Sued as the legal representative of Fredrick M’Maranya - Deceased) (Environment and Land Miscellaneous Application E002 of 2014) [2024] KEELC 1589 (KLR) (13 March 2024) (Ruling)
Neutral citation: [2024] KEELC 1589 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Miscellaneous Application E002 of 2014
CK Nzili, J
March 13, 2024
Between
Bessy Nkirote Ndegwa (Suing as the legal representative of John Degwa (Deceased)
Applicant
and
Stephen Kinyua Maranya (Sued As The Legal Representative Of Fredrick M’Maranya - Deceased)
Respondent
Ruling
1. The court is asked to order the reconstruction of Meru H.C Civil Case No. 89 of 1988. The reasons are that the suit land related to L.R No. Nyaki/Kithoka/666, which was set aside by Meru H.C Succession Case No. 37 of 1991 in a judgment dated 13. 5.2019 and affirmed in a ruling dated 4. 2.2022, awaiting the disposal of the said suit.
2. It is averred that the applicants are living on the suit land at the exclusion of anyone else in the estate of the late Fredrick Maranya, but are now threatened with eviction. It is averred that the initial file was destroyed under the direction of the court as per a certificate of destruction issued by the Deputy Registrar of this court.
3. The applicant avers there was a need to open a skeleton file to have the matter heard to a conclusion and there will be no prejudice to the respondent if the orders requested are allowed. The applicant has attached copies of a letter of administration for the estate of John Ndegwa, a chief's letter dated 15. 12. 1986, defense and counterclaim, a copy of a death certificate for the late Fredrick Maranya, a land sale agreement dated 18. 2.1991, title deed dated 6. 5.1991, petition and judgment in the probate cause and ruling dated 4. 2.2022, clarifying L.R No. Nyaki/Kithoka/666 was not part of the estate of the deceased grandfather, post-judgment application in the probate cause, letter dated 24. 11. 2022 seeking confirmation of the destruction gazette notice dated 1. 2.2019 and a certificate of destruction, dated 21. 8.2019 all marked B.N. 1 – 10 and B.N. 13 (a) & (b) respectively.
4. The application is opposed by a replying affidavit sworn on 13. 2.2024 by Stephen Kinyua. It is averred that the application is brought late with no reason for the inordinate delay. That indolence shows that the applicant does not deserve the orders sought. Further, it is averred that the application was not tenable since a lot has happened, changing the material facts, which cannot be cured by amendments as per the attached copy of the green card. That the late John Ndegwa was not a son of the late Fredrick Maranya; he was not a beneficiary of the estate; it was irregular for the clan to allocate him the land; the applicant and his late father were trespassers to the land; he misled the probate court, and that the suit abated after his father passed on. The respondent attached copies of the green card and judgment as annexures SK "1" & "2" respectively.
5. The guidelines for the reconstruction of a skeleton file are set out on pages 33-34 of the 2nd edition of the High Court of Kenya Registry Operations Manual. In this application, it is averred and demonstrated that the file was destroyed in February 2019, following a gazettement on 1. 2.2019. The applicant has not denied that the suit had abated following the death of the initial plaintiff. The defendant also passed on on 26. 6.2014.
6. Order 24 of the Civil Procedure Rules governs the abatement of a suit. If the suit abated following the demise of both parties and there is no evidence of an application to substitute enlarge time or revive the suit it means that by the time the file was destroyed on 21. 8.2019 and gazetted, the suit had abated.
7. The applicant has not explained the inordinate delay in seeking to revive the suit or substitute the deceased from 2019, to the filing of this application. The delay has not been explained at all. The applicant cannot go around Order 24 of the Civil Procedure Rules through an application for reconstruction of the file. The court cannot revive an already abated suit. It would be an act in futility.
8. The application is, therefore, dismissed with costs.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERUON THIS 13th DAY OF MARCH, 2024In presence ofC.A KananuMiss Kerubo for Ngunjiri for applicantHON. C K NZILIJUDGE