[2008] KEHC 2092 (KLR)
The court found that the application to substitute the deceased respondent was made more than three years after the respondent's death, far exceeding the one-year period prescribed by Order 23 Rule 4(3) of the Civil Procedure Code. As no application for substitution was made within the required time, the suit...
Source-derived case information.
- Citation
- [2008] KEHC 2092 (KLR)
- Parties
- Plaintiff: Ngari Ndegenye; Defendant: Charles Githinji; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 36 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Substitute Deceased Respondent
- Outcome
- application dismissed; suit abated against deceased respondent; suit to proceed against second respondent
- Legal Topics
- Abatement of Suit, Substitution of Parties, Order 23 Civil Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngari Ndegenye
Plaintiff
Charles Githinji
Defendant
Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Substitute Deceased Respondent
Legal Issues
- 1 Whether the application to substitute the deceased respondent was made within the time prescribed by law.
- 2 Whether the suit against the deceased respondent abated due to lapse of time under Order 23 Rule 4(3) of the Civil Procedure Code.
Ratio Decidendi
The court found that the application to substitute the deceased respondent was made more than three years after the respondent's death, far exceeding the one-year period prescribed by Order 23 Rule 4(3) of the Civil Procedure Code. As no application for substitution was made within the required time, the suit against the deceased respondent abated by operation of law. The court upheld the preliminary objection and dismissed the application for substitution, but allowed the suit to proceed against the second respondent, who is still alive.
Court Disposition
application dismissed; suit abated against deceased respondent; suit to proceed against second respondent
Orders
- The application to substitute the deceased respondent is dismissed.
- The suit is declared abated against the deceased respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Misc. 36 of 2005
NGARI NDEGENYE…….………..……………………………PLAINTIFF
VERSUS
CHARLES GITHINJI…………….……………………..1ST DEFENDANT
ATTORNEY GENERAL……………………………….2ND DEFENDANT
RULING
Chamber Summons dated the 10th day of July 2007 and amended on 28/1/2008 seeks to substitute a deceased Respondent in this Judicial Review matter. He holds a grant of letters of Administration in the estate of deceased Respondent. The applicant is the son of the deceased party. The death occurred on 12/7/2005. The Preliminary Objection raised by counsel is that the party to be substituted for died more than 12 months in fact he died more than 3 years past. Order 23 Civil Procedure Code 4 (3) provides for the time within which an application may be made failing which the suit as against abates. The applicant has invoked the said order 23 rule 4 (1) Civil Procedure Code empowers the court to cause the legal representative of the deceased to be made a party and shall proceed with the suit Rule 4 (3) provides where no application is made within one year the suit shall abate.
I uphold the Preliminary Objection and declare that suit has abated against this Respondent but it may proceed with the 2nd Respondent who is alive.
Application is dismissed.
Dated this 9th May, 2008.
J. N. KHAMINWA
JUDGE
9/5/2008
9/5/2008
Khaminwa – Judge
Njue- Clerk
Mr. Rukwaro HB for Wairimu
N/A for Muraguri
Read in open court.
J. N. KHAMINWA
JUDGE