[2014] KEHC 8378 (KLR)
The court found that the application for substitution was filed well after the suit had abated, as the 1st Plaintiff died on 27/10/2009 and the application was made on 5/9/2013, exceeding the one-year period prescribed by Order 24 Rule 3(2) of the Civil Procedure Rules. The applicant did not seek revival of the...
Source-derived case information.
- Citation
- [2014] KEHC 8378 (KLR)
- Parties
- Plaintiff: Paul Lantei; Plaintiff: Jacob Mwanto Wangora; Defendant: Patrick Kangethe Njuguna; Defendant: Wellington Itotia; Defendant: Kajiado Land Registrar; Defendant: Francis Mungai Kageni; Defendant: Recho Kageni; Defendant: David Migichi Kageni; Defendant: Bati Akul Tschiang; Defendant: Joseph Kathuri Ndathi; Defendant: Joseph Wairimu Kiiri; Defendant: Susan Nyambura Karanja
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 828 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Party After Abatement
- Outcome
- application dismissed
- Judges
- LN Gacheru
- Legal Topics
- Abatement of Suit, Substitution of Parties, Revival of Suit, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Lantei
Plaintiff
Jacob Mwanto Wangora
Plaintiff
Patrick Kangethe Njuguna
Defendant
Wellington Itotia
Defendant
Kajiado Land Registrar
Defendant
Francis Mungai Kageni
Defendant
Recho Kageni
Defendant
David Migichi Kageni
Defendant
Bati Akul Tschiang
Defendant
Joseph Kathuri Ndathi
Defendant
Joseph Wairimu Kiiri
Defendant
Susan Nyambura Karanja
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Party After Abatement
Legal Issues
- 1 Whether the applicant can be substituted as a party to represent the estate of the deceased after the suit has abated.
- 2 Whether the application for substitution was filed within the time prescribed by law.
- 3 Whether the applicant has complied with the procedure for revival of an abated suit.
Ratio Decidendi
The court found that the application for substitution was filed well after the suit had abated, as the 1st Plaintiff died on 27/10/2009 and the application was made on 5/9/2013, exceeding the one-year period prescribed by Order 24 Rule 3(2) of the Civil Procedure Rules. The applicant did not seek revival of the abated suit as required by Order 24 Rule 7(2), nor did he provide sufficient explanation for the delay or the circumstances surrounding the rectification of the letters of administration. As a result, the court held that the application was not merited and could not stand, as the proper procedure for revival of an abated suit had not been followed.
Court Disposition
application dismissed
Orders
- The application dated 5th September, 2013 is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
ENVIRONMENT AND LAND COURT
ELC NO. 828 OF 2007
PAUL LANTEI…………………………………………………………....……..1ST PLAINTIFF
JACOB MWANTO WANGORA………………………………………………2ND PLAINTIFF
VERSUS
PATRICK KANGETHE NJUGUNA………………………………....…….…1ST DEFENDANT
WELLINGTON ITOTIA……………………………………………….……..2ND DEFENDANT
KAJIADO LAND REGISTRAR…………………………………….….……3RD DEFENDANT
FRANCIS MUNGAI KAGENI…………………………………………...…....4TH DEFENDANT
RECHO KAGENI……………………………………………….........……….5TH DEFENDANT
DAVID MIGICHI KAGENI……………………………………….....…………6TH DEFENDANT
BATI AKUL TSCHIANG…………………………………………..………….7TH DEFENDANT
JOSEPH KATHURI NDATHI……………………………………....…………8TH DEFENDANT
JOSEPH WAIRIMU KIIRI………………………………………...…………..9TH DEFENDANT
SUSAN NYAMBURA KARANJA……………………………….....………..10TH DEFENDANT
RULING
Before me is an application dated 5/9/2013 brought under Order 24 Rule 3(1) of the Civil Procedure Rules, 2010. The application is filed by David Lakishon Leponyo (the Applicant) who seeks an order that the legal representative of the Leponyo Ole Ntioe (deceased) be made a party herein. The application is premised on grounds outlined in the application and supported by an affidavit sworn on 6/9/2013. The Applicant states that he is a son of Leponyo Ole Ntione who is the deceased proprietor of the suit property and that the 1st Plaintiff instituted the suit as the legal representative of the deceased since the Applicant was a minor at the time. However, that the 1st Plaintiff is now deceased and the Applicant, having received the letters of administration to the estate of his father desires to join the suit to represent the estate of his deceased father in the matter.
This application is opposed by the Respondents. The Attorney General for the 3rd Defendant filed Grounds of Opposition dated 25/11/2013 and the 5th, 6th and 7th Defendants filed Grounds of Opposition dated 10/10/2013 to the application on grounds that the application is an abuse of the court process, has come late in the day and is fatally defective. The 6th Defendant swore a Replying Affidavit on 10/10/2013 wherein he deposed that there is no reason stated as to why there has been inordinate delay in filing the application. Further, the 6th Defendant deposed, that the application is fatally defective and should not be granted.
By consent of all the parties, the court directed that the application be canvassed by way of written submissions. Despite of this, the Applicant failed to file submissions. Wandabwa Advocates for the 4th, 5th, 6th and 7th Defendants filed submissions dated 21/3/2014. Counsel submitted that the suit has abated on 27/10/2010 since the 1st Plaintiff passed away on 27/10/2009. Further that Order 7(2) of the Civil Procedure Rules provides for revival of a suit that has abated by the legal representative which the Applicant has not prayed for.
The Applicant seeks to be joined to the suit to represent the 1st Plaintiff (deceased) who was also a representative of the Applicant’s father. The procedure in case of death of a party is provided for under Order 24 of the Civil Procedure Rules. The law envisages the death of a party and hence provides at Rule 1 that the death of a party shall not cause the suit to abate if the cause of action survives or continues. The suit is kept alive by the substitution of such party with the legal representatives. An application for such substitution, however, pursuant to Rule 3 (2) must be made within 1 year or else the suit shall abate in the case of a deceased Plaintiff. The Applicant availed a copy of the death certificate of the deceased which reveals that his demise was on 27/10/2009. The application herein is therefore filed way after the suit abated. The Applicant also annexed a copy of the letters of administration in his favour for the estate of his deceased father, rectified on 31/7/2013. The Applicant however fails to inform the court of the circumstances leading to the rectification or when the original orders were issued. All the same, the suit did abate and the application herein cannot stand. As pointed out by Wandabwa Advocate, the procedures in place to revive a suit that has abated.
Having now considered the applicants Notice of Motion dated 5th September, 2013 and the written Submissions, the court finds the said application not merited. Consequently, the court dismisses the said application with costs in the cause.
It is so ordered.
Dated, Signed and Delivered this 6thday of August2014
L.N. GACHERU
JUDGE
In the Presence of:-
………………………………………For the Plaintiff
………………………………………For the 1st Defendant
………………………………………For the 2nd Defendant
………………………………………For the 3rd Defendant
………………………………………For the 4th, 5th, 6th, and 7th Defendants
……………………………………...For the 8th Defendant
……………………………………...For the 9th Defendant
…………………………………….For the 10th Defendant
Kamau: Court Clerk
L.N. GACHERU
JUDGE