[2018] KEELC 4405 (KLR)
The court found that although the suit was dismissed for non-attendance after the plaintiff's death, it was incumbent upon the legal representative, once granted letters of administration, to act promptly to revive or substitute in the suit. The applicant waited over eight years after obtaining letters of...
Source-derived case information.
- Citation
- [2018] KEELC 4405 (KLR)
- Parties
- Plaintiff: Raphael Kakula Nzuki; Defendant: Divisional Integrated Dev. Programme; Applicant: Anthony Mwendwa Nzuki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 74 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and for Substitution
- Outcome
- application dismissed; suit stands dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Non Attendance, Substitution of Parties, Abatement of Suit, Revival of Suit, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Raphael Kakula Nzuki
Plaintiff
Divisional Integrated Dev. Programme
Defendant
Anthony Mwendwa Nzuki
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and for Substitution
Legal Issues
- 1 Whether the order dismissing the suit for non-attendance should be set aside given the plaintiff was deceased at the time of dismissal.
- 2 Whether the applicant should be substituted as plaintiff as legal representative of the deceased.
- 3 Whether the delay in filing the application to set aside dismissal and for substitution was inordinate and unreasonable.
Ratio Decidendi
The court found that although the suit was dismissed for non-attendance after the plaintiff's death, it was incumbent upon the legal representative, once granted letters of administration, to act promptly to revive or substitute in the suit. The applicant waited over eight years after obtaining letters of administration before seeking to set aside the dismissal and be substituted as plaintiff. The court held that such delay was unreasonable and inordinate. The court further held that the advocate for the plaintiff knew or ought to have known of the dismissal in 2007. The court declined to exercise its discretion to set aside the dismissal or allow substitution, finding no sufficient...
Court Disposition
application dismissed; suit stands dismissed
Orders
- The application dated 25th May, 2015 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 74 OF 2017
RAPHAEL KAKULA NZUKI ....................................................PLAINTIFF
VERSUS
DIVISIONAL INTEGRATED DEV. PROGRAMME...............DEFENDANT
AND
ANTHONY MWENDWA NZUKI (Legal representative of the
Estate ofRAPHAEL KAKULA NZUKI– Deceased).........APPLICANT
RULING
1. In the Application dated 25th May, 2015, the Applicant is seeking for the following orders:
a. That this Honourable Court’s order dated 22nd March, 2007 dismissing the Plaintiff’s suit for non-attendance be set aside.
b. That the Plaintiff, who died on 2nd January, 2007, be substituted with Anthony Mwendwa Nzuki, a legal representative of the deceased Plaintiff and an administrator of his Estate.
c. That costs of this Application be in the cause.
d. Any other order that this Honourable Court may deem fit and just to grant.
2. The Application is supported by the Affidavit of the Applicant who has deponed that the Plaintiff was his father and he died on 2nd January, 2007; that he was issued with letters of administration on 18th December, 2007 and that the Defendant never filed a Defence in this matter.
3. According to the Applicant, when the suit was dismissed by the court on 22nd March, 2007, the Plaintiff had already died and that the suit involves the deceased’s prime land being L.R. No. 12715/197 measuring approximately five (5) acres.
4. It is the Applicant’s deposition that he was not aware of the suit until when he was served with a Decree and produced in Machakos ELC Case No. 18 of 2008; that the Plaintiffs in ELC No. 18 of 2008 are claiming that they bought the land from the Defendant herein and that the Plaintiff’s Estate stands to suffer irreparably unless the orders herein are granted.
5. The Defendant’s advocate filed a Notice of Preliminary Objection in which he averred that there is no suit in existence for revival; that the suit abated in the year 2008 and that there has been inordinate delay in filing the Application.
6. The Applicant’s advocate appeared before me on 16th October, 2017 and submitted that by the time the suit was dismissed for non-attendance, the Plaintiff was already dead; that the Applicant was not aware of the existence of the suit and that Section 3A gives the court a free hand to make orders as may be necessary for the ends of justice.
7. The record shows that this suit was dismissed by the court on 22nd March, 2007 when neither the Plaintiff nor his advocate was in court when the matter was called out.
8. Indeed, the suit remained dismissed from 22nd March, 2007 until 25th May, 2015 when the current Application was filed.
9. According to the Plaintiff’s Legal Representative, he was not aware of the suit or the fact that the same had been dismissed until when he was served with a Decree in Machakos ELC Case No. 18 of 2008.
10. Considering that the Applicant obtained the Letters of Administration on 18th December, 2007, it was incumbent upon him to find out about the status of the suits that the Plaintiff had filed within a reasonable time.
11. The Applicant cannot wait for over eight (8) years to seek to set aside an order dismissing a suit for non-attendance on the basis that he was not aware of the suit.
12. It cannot be said that the court erred in dismissing a suit for non-attendance just because the Plaintiff was already dead by the time the suit was dismissed. Where a Plaintiff dies and the cause of action survives him, it is the responsibility of the legal representative to move with speed and step in the shoes of the deceased party to forestall the abatement of such a suit or its dismissal.
13. Having not moved with haste to file the current Application, and considering that the Plaintiff’s advocate knew or ought to have known that the suit had been dismissed way back in the year 2007, I find that the filing of the Application eight (8) years down the line to set aside the orders of the court is unreasonable and inordinate delay.
14. For those reasons, I decline to grant the orders sought and instead dismiss the Application dated 25th May, 2015 with no orders as to costs.
15. For avoidance of doubt, the suit stands dismissed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF MARCH, 2018.
O.A. ANGOTE
JUDGE