[2007] KEHC 462 (KLR)
The court found that the plaintiff died on 10th March 2005 and no application for substitution was made within the statutory period of one year as required by Order 23 Rule 3(2) of the Civil Procedure Rules. As more than one year had elapsed without substitution, the court held that the suit had abated by operation...
Source-derived case information.
- Citation
- [2007] KEHC 462 (KLR)
- Parties
- Plaintiff: Samwel Kahiu Munyua; Defendant: Kenya Commercial Bank Ltd
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 135 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application for Abatement of Suit
- Outcome
- Suit declared abated due to death of plaintiff and lack of substitution within one year.
- Judges
- K Bauni
- Legal Topics
- Abatement of Suit, Death of Party, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Kahiu Munyua
Plaintiff
Kenya Commercial Bank Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Abatement of Suit
Legal Issues
- 1 Whether the suit should be declared abated due to the death of the plaintiff and lack of substitution within the prescribed period.
Ratio Decidendi
The court found that the plaintiff died on 10th March 2005 and no application for substitution was made within the statutory period of one year as required by Order 23 Rule 3(2) of the Civil Procedure Rules. As more than one year had elapsed without substitution, the court held that the suit had abated by operation of law. The application by the defendant was therefore proper and merited, leading to the declaration that the suit had abated. Costs were awarded to the defendant to be paid from the estate of the deceased plaintiff.
Court Disposition
Suit declared abated due to death of plaintiff and lack of substitution within one year.
Orders
- The suit is declared abated.
- The defendant shall have costs of the suit to be paid from the estate of the deceased plaintiff.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CIVIL SUIT 135 OF 2004
SAMWEL KAHIU MUNYUA................................PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LTD:............DEFENDANT
RULING
Before me is an application under order XXIII Rules 3 and 12 of CPR seeking the court to declare the suit by the plaintiff to have abated. It was deponed by DELMAS MWINAMO the counsel for the defendant that the plaintiff in this suit SAMUEL KAHU MUNYUA passed away. He has annexed a copy of a death certificate which indeed confirms that the plaintiff died on 10th March 2005 at Thika district Hospital due to severe pneumonia. Since then there has been no applicants to substitute the deceased plaintiff. Order 23 rule 3(1) CPR provides that where a party dies and cause of action services an application can be made to cause the legal representative of the deceased plaintiff or defendant to be made a party and the suit to proceed. Sub rule 2 of the said rule provides that where there is no application is made for substitution within one year the suit shall abate. Clearly since 10th March 2005 when the plaintiff died is more than one year and there has been no application for substitution.
In the circumstances I find the application before me is proper and I grant the same. I declare the suit to have abated. The defendant will have costs of the suit to be paid from the estate of the deceased.
DATED AND DELIVERED AT ELDORET ON 19TH APRIL 2007.
KABURU BAUNI
JUDGE