[2022] KEHC 11245 (KLR)
The court held that substitution of a plaintiff under Order 24 Rule 3 of the Civil Procedure Rules requires proof that the plaintiff is deceased. In this case, there was no evidence presented to establish the death of the plaintiff, only that he had been missing since September 2021. The court found that the...
Source-derived case information.
- Citation
- [2022] KEHC 11245 (KLR)
- Parties
- Plaintiff: Moses Ndegwa Ngugi; Defendant: Attorney General; Applicant: Phillys Njeri Ngugi
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 20 of 2019
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Substitution of Plaintiff
- Outcome
- application dismissed
- Judges
- RB Ngetich
- Legal Topics
- Substitution of Parties, Abatement of Suit, Missing Persons, Legal Representative, Order 24 Rule 3
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Moses Ndegwa Ngugi
Plaintiff
Attorney General
Defendant
Phillys Njeri Ngugi
Applicant
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Substitution of Plaintiff
Legal Issues
- 1 Whether the applicant should be allowed to substitute the plaintiff as his legal representative in the suit.
- 2 Whether there is sufficient proof of the plaintiff's death to warrant substitution under Order 24 Rule 3 of the Civil Procedure Rules.
- 3 Whether the suit should abate for lack of prosecution due to the plaintiff's disappearance.
Ratio Decidendi
The court held that substitution of a plaintiff under Order 24 Rule 3 of the Civil Procedure Rules requires proof that the plaintiff is deceased. In this case, there was no evidence presented to establish the death of the plaintiff, only that he had been missing since September 2021. The court found that the applicant had not demonstrated that the cause of action would survive the death of the plaintiff if it were eventually proved. Consequently, the application for substitution was not merited and was dismissed. The court emphasized that mere disappearance or being missing does not equate to legal proof of death for the purposes of substitution under the Civil Procedure Rules.
Court Disposition
application dismissed
Orders
- Application is hereby dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
Ngugi v Attorney General (Civil Suit 20 of 2019) [2022] KEHC 11245 (KLR) (28 July 2022) (Ruling)
Neutral citation: [2022] KEHC 11245 (KLR)
Republic of Kenya
In the High Court at Kiambu
Civil Suit 20 of 2019
RB Ngetich, J
July 28, 2022
Between
Moses Ndegwa Ngugi
Plaintiff
and
Attorney General
Defendant
Ruling
1. This a ruling on notice of motion application dated 10th February 2022, and filed on 12th April 2022 brought under the provisions of Order 51 Rule 1 and 4 of theCivil Procedure Rules, seeking the following orders:(a)The court does issue an order substituting the plaintiff with Phillys Njeri Ngugi as his legal representative.(b)That the court does issue an order that Phillys Njeri Ngugi do continue with the suit.(c)Costs of the application.
2. The application is premised on the grounds that the applicant is the biological mother of the plaintiff who has been living with the plaintiff at Kimunyu- Gatundu County. The applicant averred that the plaintiff was abducted on 1st September 2021 at around 4. 00 pm by unknown persons as he was going about with his Boda Boda business and to date he has not been seen nor heard. The motorcycle Reg no. KMEY 288Y in which he was riding was found abandoned at the scene of the abduction.
3. She averred that the matter was reported at the police station and efforts to trace the plaintiff have become futile and if the substitution is not done the matter will abate for lack of prosecution yet it has a high probability of success. That it is in the interest of justice that the applicant is allowed to substitute the plaintiff.
4. The application is supported by the annexed affidavit of Phillys Njeri Ngugi in which she deposes the plaintiff who is her son was abducted on 1st September, 2021 with no traces of his whereabouts despite numerous searches. She wishes to be substituted in the matter and proceed to prosecute the matter.
Analysis And Determination 5. The law governing the substitution of a deceased plaintiff is Order 24 Rule 3 of the Rules. The law under that Rule provides:-“3(1) Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.(2)Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff.Provided the court may, for good reason on application, extend the time.”
6. From the above provision, it is upon death of the sole plaintiff or the only surviving plaintiff and on the application, the court has the discretion to substitute the deceased plaintiff and that even after the suit abates, there is jurisdiction in the court to extend time.
7. From the evidence, the applicant contends the plaintiff was abducted on 1st September 2021 and he has never been traced since then, she is apprehensive that unless the plaintiff is substituted the suit will abate as it is close to one year since the disappearance of the plaintiff.
8. From the legal provision above a deceased person is substituted by a legal representative in order to proceed with the matter. In the instant case,there is no prove that the plaintiff is dead; the position is the plaintiff has been missing since September 2021.
9. In the circumstances, I do find the application is merited and the same is allowed. The applicant is allowed to substitute the plaintiff herein.
10. There is no prove that the plaintiff is dead to warrant substitution. The applicant has not also demonstrated that the action herein will survive the dead of the plaintiff in the event it is proved that he is deceased.
11. From the foregoing,I see no merit in the application.
12. Final Orders:-1. Application is hereby dismissed.2. No orders as to costs.
RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBUTHIS 28TH DAY OF JULY, 2022. .............................RACHEL NGETICHJUDGEIn the Presence of:Kinyua – Court Clerk