[2006] KEHC 2165 (KLR)
The court found that the applicant, Patrick Theuri Wachiuri, demonstrated sufficient interest and diligence in prosecuting the matter, having taken steps to file relevant applications even while in prison. The court held that such interest should not be overlooked and that the applicant deserves an opportunity to...
Source-derived case information.
- Citation
- [2006] KEHC 2165 (KLR)
- Parties
- Applicant: Patrick Theuri Achiuri; Plaintiff: Wachira Theuri (Deceased); Defendant: Washington Ndegwa Wanjohi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 35 of 1987
- Procedural Posture
- Civil Case / Ruling on Consolidated Chamber Summons for Abatement and Substitution
- Outcome
- Defendant's application for abatement dismissed; applicant's application for substitution granted.
- Legal Topics
- Abatement of Suit, Substitution of Parties, Order Xxiii Rules, Costs in the Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Theuri Achiuri
Applicant
Wachira Theuri (Deceased)
Plaintiff
Washington Ndegwa Wanjohi
Defendant
Procedural Posture
Civil Case / Ruling on Consolidated Chamber Summons for Abatement and Substitution
Legal Issues
- 1 Whether the suit should abate due to the death of the original plaintiff.
- 2 Whether Patrick Theuri Wachiuri should be substituted as plaintiff in place of the deceased.
Ratio Decidendi
The court found that the applicant, Patrick Theuri Wachiuri, demonstrated sufficient interest and diligence in prosecuting the matter, having taken steps to file relevant applications even while in prison. The court held that such interest should not be overlooked and that the applicant deserves an opportunity to continue the proceedings as plaintiff. Consequently, the application for abatement was dismissed, and the application for substitution was granted, with costs of each application to be costs in the cause.
Court Disposition
Defendant's application for abatement dismissed; applicant's application for substitution granted.
Orders
- Defendant's Chamber Summons dated 28th March 2005 is dismissed.
- Patrick Theuri Wachiuri's Chamber Summons dated 13th September 2005 is granted as prayed.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI Civil Case 35 of 1987
PATRICK THEURI ACHIURI………..……....….........….APPLICANT/PLAINTIFF
WACHIRA THEURI (DECEASED)
Versus
WASHINGTON NDEGWA WANJOHI……........….DEFENDANT/RESPONDENT
RULING
I have carefully considered what was brought before me during the hearing of these two applications, namely Chamber summons dated 28 March 2005 filed by Washington Ndegwa Wanjohi and Chamber Summons dated 13th September 2005 filed by Patrick Theuri Wachiuri. The former wants orders making this case abated and is brought under order XXIII Rule 1 of the Civil Procedure Rules while the later seeks an order to substitute Patrick Theuri Wachiuri in the place of the deceased Plaintiff Wachiuri Theuri.
Order XXIII Rule I does not say much on the issue of abatement and Mr. Kiminda, counsel for the Applicant in Chamber Summons dated 28th March, 2005 did not add much. I should have said that the two applications were by consent consolidated for hearing and I did hear both of them together.
In the Chamber Summons dated 13th September, 2005, the interest and determination shown by the Applicant cannot be overlooked. He was a prisoner in prison yet managed to file his papers not only in this suit but also in a succession cause. He is now outside Prison custody and gives the impression that he is a person who is keen to move court proceedings. I think he deserves to be given the opportunity to do so hoping he will not relax
That being the position, the Defendant’s Chamber Summons dated 28th March, 2005 is hereby dismissed and Patrick Theuri Wachiuri’s Chamber Summons dated 13th September 2005 granted as prayed. Costs of each application be costs in the cause.
Dated this 15th day of June, 2006.
J. M. KHAMONI
JUDGE