[2006] KEHC 842 (KLR)
The court found that the plaintiff had died and no application for substitution had been made within 12 months as required by Order 23 rules (1) and (2) of the Civil Procedure Rules. As a result, the suit had abated by operation of law. The court therefore allowed the defendant's application to dismiss the suit for...
Source-derived case information.
- Citation
- [2006] KEHC 842 (KLR)
- Parties
- Plaintiff: Ramji Harji Kimji; Defendant: Safari World (K) Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 5189 of 1993
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss Suit for Abatement
- Outcome
- Application allowed. Suit dismissed for abatement with costs to the defendant.
- Legal Topics
- Abatement of Suit, Personal Injury, Motor Vehicle Accident
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ramji Harji Kimji
Plaintiff
Safari World (K) Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss Suit for Abatement
Legal Issues
- 1 Whether the suit should be dismissed for abatement following the death of the plaintiff and no substitution within the prescribed period.
- 2 Whether the defendant is entitled to costs upon dismissal for abatement.
Ratio Decidendi
The court found that the plaintiff had died and no application for substitution had been made within 12 months as required by Order 23 rules (1) and (2) of the Civil Procedure Rules. As a result, the suit had abated by operation of law. The court therefore allowed the defendant's application to dismiss the suit for abatement and awarded costs to the defendant.
Court Disposition
Application allowed. Suit dismissed for abatement with costs to the defendant.
Orders
- The suit is dismissed for abatement.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS Civil Case 5189 of 1993
RAMJI HARJI KIMJI ……………………….........................………….. PLAINTIFF
VERSUS
SAFARI WORLD (K) LTD. ……………….....................…………. DEFENDANT
RULING
1: PROCEDURE
1. The application herein is under Order 23 r (1) and (2) Civil Procedure Rules that seeks main suit on grounds that the plaintiff had passed away and thus the suit has abated .
2. On the 22. 10. 93 almost 13 years ago, Ramiji Harji Kimji Patel filed a suit in the High Court of Kenya at Nairobi whereby he claimed damages for injuries sustained whilst travelling in the 1st defendants vehicle Safari World (Kenya) Ltd and driven by Ibrahim Abadalla the 2nd defendant herein. The vehicle was involved in a motor vehicle collision on 8. 12. 90 at 12. 30 p.m. along the Nakuru/Gil Gil road. It is alleged that the driver left its rightful lane and overtook other vehicles and caused a collision. A 3rd party vehicle, not party to the suit was involved.
3. The advocates for the defendants filed defence on entering appearance and blamed the accident on the plaintiffs and 3rd party.
4. On 4th July 2005, the Advocate for the defendant withdrew an application of 19. 8.99 to cease from acting for defendant as he was no cooperation.
5. An application 26. 5.04 was also withdrawn on 4. 7.05 seeking the transfer of this suit to the lower court. The defendants prayed in a third subsequent application between the parties dated 14. 6.04 that the suit be dismissed for lack of prosecution.
6. This court was notified on 13. 1.05 by the advocate for the plaintiff that the plaintiff had passed away on unknown dates. This information was confirmed on 17. 10. 05, the date of death being 16 August 2004. The suit was then stood over generally to allow for appropriate application to be filed. None was filed.
7. It is thereafter the lapse of 12 months that the advocate for defendant sort though the application of 7 July 2006 the subject matter of this ruling that there was sort leave to have the suit dismissed as it had abated.
8. The advocate for plaintiff did not appear to court on the date the application came for hearing.
Finding:
9. It has indeed been 12 months and no action has been taken by the plaintiff. The application is hereby allowed with costs to the defendants.
Dated this 30th day of October 2006 at Nairobi.
M.A. ANG’AWA
JUDGE
Ramesh Manek, Esq. Advocates for the plaintiff/respondent
Shah & Parekh Co. Advocates for the defendant/applicant