[2011] KEHC 405 (KLR)
The court found that the applicant provided a credible and satisfactory explanation for the delay in seeking revival of the suit, namely that she was not informed by her previous advocate of the abatement and only became aware upon engaging new counsel. The court was satisfied that the applicant did not act in bad...
Source-derived case information.
- Citation
- [2011] KEHC 405 (KLR)
- Parties
- Applicant: Elizabeth Wanjiku Mugo; Respondent: Peter Mbiri Michuki
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 62 of 2009
- Procedural Posture
- Civil Case / Ruling on Application to Revive Abated Suit
- Outcome
- Application to revive the suit allowed.
- Legal Topics
- Abatement of Suit, Revival of Suit, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Wanjiku Mugo
Applicant
Peter Mbiri Michuki
Respondent
Procedural Posture
Civil Case / Ruling on Application to Revive Abated Suit
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the revival of the abated suit.
- 2 Whether the delay in seeking revival was excusable under the circumstances.
Ratio Decidendi
The court found that the applicant provided a credible and satisfactory explanation for the delay in seeking revival of the suit, namely that she was not informed by her previous advocate of the abatement and only became aware upon engaging new counsel. The court was satisfied that the applicant did not act in bad faith or with indifference, and that the interests of justice would be served by allowing the suit to proceed on its merits. Accordingly, the court exercised its discretion to allow the application for revival of the suit, with costs to abide the outcome of the main suit.
Court Disposition
Application to revive the suit allowed.
Orders
- The summons dated 2nd December 2009 is allowed; the suit is revived.
- Costs of the application to abide the outcome of the suit.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CIVIL CASE NO. 62 OF 2009
SAMUEL MUGO MICHUKI
ELIZABETH WANJIKU MICHUKI.................................................................PLAINTIFFS
VERSUS
PETER MBIRI MICHUKI................................................................................DEFENDANT
RULING
The subject matter of this ruling is the summons dated 2nd December 2009 in which Elizabeth Wanjiku Mugo, seeks to have the suit revived. The summons is supported by the affidavit of Elizabeth Wanjiku Mugo. Peter Mbiri Michuki, filed a replying affidavit he swore to oppose the summons.
It is the applicant’s submission that on 24th December 2002, the Plaintiff herein passed away and that on 5th May 2005 the legal representative was joined to this suit. The Applicant avers that she was not advised by her former advocate that the suit had lapsed by the time she was enjoined to the suit.
The Defendant on his part is of the view that the Applicant had lost interest to pursue this case because even after substitution she has never taken any steps to fix the case for hearing.
I have carefully considered the rival submissions plus the grounds set out on the face of the Motion and the facts deponed in the affidavit. The Court has a wide discretion in allowing such applications so long as sufficient reasons are given. It is not in dispute that the deceased Plaintiff was substituted by the Applicant on 5th May 2005. The applicant has stated that she was not informed by her erstwhile advocate that the suit had already abated at the time of substitution. She claimed she only came to learn about that when she engaged the services of a new advocate. I am convinced the Applicant has given a plausible explanation for her delay to cause the suit to be revived. I have no reason to doubt here sincerity. I allow the summons dated 2nd December 2009 with costs abiding the outcome of the suit.
Dated and delivered at Nyeri this 21st day of October 2011.
J. K. SERGON
JUDGE
In open court in the presence of Mr. Wambugu for the Defendant/Respondent. No appearance for the Applicant.