[2017] KEHC 1607 (KLR)
The court found that although the suit had abated due to inactivity and the inability of the plaintiff's advocate to trace the plaintiff's family, the nature of the dispute—being a land matter involving an elderly widow—warranted the exercise of judicial discretion. The court directed the plaintiff and his advocate...
Source-derived case information.
- Citation
- [2017] KEHC 1607 (KLR)
- Parties
- Plaintiff: Peter Mutegi; Defendant: Benjamin Kimenchu & Another
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 105 of 2017
- Procedural Posture
- Land Case / Interlocutory Ruling on Abatement
- Outcome
- Directions issued for application to revive abated suit within 30 days; matter stood over for directions.
- Judges
- FM Njoroge
- Legal Topics
- Abatement of Suit, Revival of Suit, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mutegi
Plaintiff
Benjamin Kimenchu & Another
Defendant
Procedural Posture
Land Case / Interlocutory Ruling on Abatement
Legal Issues
- 1 Whether the suit has abated against the plaintiff.
- 2 Whether the plaintiff or his advocate can apply for revival of the suit after abatement.
- 3 Whether a fresh suit can be brought on the same cause of action after abatement.
Ratio Decidendi
The court found that although the suit had abated due to inactivity and the inability of the plaintiff's advocate to trace the plaintiff's family, the nature of the dispute—being a land matter involving an elderly widow—warranted the exercise of judicial discretion. The court directed the plaintiff and his advocate to apply for revival of the suit within 30 days, emphasizing that no fresh suit could be brought on the same cause of action if abatement stands unchallenged. The court balanced procedural rules with the interests of justice, particularly considering the vulnerability of the parties involved.
Court Disposition
Directions issued for application to revive abated suit within 30 days; matter stood over for directions.
Orders
- Plaintiff and advocate to apply for order to revive the suit within 30 days of this ruling.
- Parties to appear in court for directions on 29th January, 2018.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
CHUKA ELC CASE NO. 105 OF 2017
FORMRLY MERU ELC CASE NO.103 OF 2007
PETER MUTEGI......................................................PLAINTIFF
VERSUS
BENJAMIN KIMENCHU & ANO........................DEFENDANT
RULING
1. When this matter came up in court on 6. 11. 2017, the issue of abatement of the suit against the plaintiff arose.
2. No question arises regarding abatement of the suit against the plaintiff. The suit was filed in 2007. The advocate representing the plaintiff told the court that for some years he was unable to trace the plaintiff’s family. He says that he only traced the plaintiff’s wife recently.
3. It is pellucid, that where a suit abates no fresh suit shall be brought on the same cause of action.
4. As this suit concerns land, and since it involves an elderly widow, I direct the plaintiff and his advocate to apply for an order to revive this suit within 30 days of the delivery of this ruling.
5. Parties are directed to come to court for directions on 29th January, 2018.
6. It is so ordered.
Delivered in open court at Chuka this 11th day of December, 2017
in the presence of :
CA: Ndegwa
Nyamu Nyaga for plaintiff
P. M. NJOROGE
JUDGE