[2005] KEHC 2160 (KLR)
The court found that the plaintiff had died on 24th June 2000 and that, despite the plaintiff's advocates indicating their intention to substitute the plaintiff, no application for substitution had been made as required by Order XXIII Rule 3(1) of the Civil Procedure Rules. As more than one year had elapsed since...
Source-derived case information.
- Citation
- [2005] KEHC 2160 (KLR)
- Parties
- Plaintiff: John Maskana Masamba; Defendant: Toya Juma Lukoba
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 92 of 1997
- Procedural Posture
- Civil Case / Ruling on Application for Abatement of Suit
- Outcome
- Suit abated for want of substitution of the deceased plaintiff; costs awarded to the defendant recoverable from the estate of the deceased plaintiff.
- Legal Topics
- Abatement of Suit, Death of Party, Substitution of Parties, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Maskana Masamba
Plaintiff
Toya Juma Lukoba
Defendant
Procedural Posture
Civil Case / Ruling on Application for Abatement of Suit
Legal Issues
- 1 Whether the suit should abate due to the death of the plaintiff and failure to substitute a legal representative within the prescribed period.
- 2 Whether the defendant is entitled to costs upon abatement of the suit.
Ratio Decidendi
The court found that the plaintiff had died on 24th June 2000 and that, despite the plaintiff's advocates indicating their intention to substitute the plaintiff, no application for substitution had been made as required by Order XXIII Rule 3(1) of the Civil Procedure Rules. As more than one year had elapsed since the plaintiff's death without substitution, the suit had abated by operation of law under Rule 3(2). The allegations in the defendant's affidavit were uncontroverted, and the court therefore ordered that the suit had abated and awarded costs to the defendant, recoverable from the estate of the deceased plaintiff.
Court Disposition
Suit abated for want of substitution of the deceased plaintiff; costs awarded to the defendant recoverable from the estate of the deceased plaintiff.
Orders
- The suit is declared abated under Order XXIII Rule 3(2) of the Civil Procedure Rules.
- The defendant is awarded costs of the suit, recoverable from the estate of the deceased plaintiff.
Full Case Text
Judgment text and source record
5 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT KAKAMEGACIVIL CASE NO. 92 OF 1997(O.S)JOHN MASKANA MASAMBA ……………………PLAINTIFFV E R S U STOYA JUMA LUKOBA ………………………… DEFENDANTR U L I N G
The application by Chamber Summons dated 25th August, 2003 was served on the advocate on record for the defendant and subsequently the parties through their representatives met at the court registry on 10th November, 2003 and duly fixed the application for hearing by consent on 4th May 2004. When the application came up for hearing on that date, Mr. Mukavale, counsel for the Defendant/Applicant appeared but counsel for the Plaintiff/Respondent failed to appear. The court allowed the applicant to proceed with the prosecution of the application in absence of the Respondent/Plaintiff who had been served and heard it exparte.
The application was brought under Order XXIII Rule 3 of the Civil Procedure Rules and sought an order that it (the suit) had abated. The reasons given for the abatement in the body of the application and in the Applicant’s affidavit in support of the application was in a nutshell, that the Plaintiff had died and as long ago as 24th June 2000 the advocates on record for the Plaintiff had written to the Applicant’s advocate confirming that they would apply to substitute the plaintiff ostensibly with the personal representative of his estate. Upto the date of the hearing of the application, no application had been made in this regard. The allegations in the applicant’s affidavit remained uncontroverted. Under Rule 3(1) of Order XXIII no application has been made for the legal representative of the estate of the deceased plaintiff to be made a party. As a period of more than one year has elapsed since the plaintiff died without such application being made, the suit has under Rule 3(2) of Order XXIII abated. Accordingly, I award the defendant costs of the suit which may be recovered from the estate of the deceased plaintiff. It is so ordered.
Dated at Kakamega this 17th day of June, 2005. G. B. M. KARIUKI J U D G E