[2022] KEELC 891 (KLR)
The court found that the parties failed to comply with its orders to file and exchange written submissions as directed on 15th December 2021. The application to dismiss the suit for abatement was to be canvassed by way of written submissions, but no compliance was shown. As a result, the court dismissed the...
Source-derived case information.
- Citation
- [2022] KEELC 891 (KLR)
- Parties
- Applicant: Selyna Z. Musandu; Respondent: The Commissioner of Land; Respondent: Registrar of Titles; Respondent: The National Land Commissioner; Defendant: George Adada Nyagowa; Defendant: Crater Automobile (NBI) Limited; Applicant: Dr. Nyagudi Musandu Nygundi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 50 of 2016
- Procedural Posture
- Notice of Motion / Ruling on Application to Dismiss Suit for Abatement
- Outcome
- application dismissed with costs
- Legal Topics
- Abatement of Suit, Substitution of Parties, Delay in Prosecution, Dismissal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Selyna Z. Musandu
Applicant
The Commissioner of Land
Respondent
Registrar of Titles
Respondent
The National Land Commissioner
Respondent
George Adada Nyagowa
Defendant
Crater Automobile (NBI) Limited
Defendant
Dr. Nyagudi Musandu Nygundi
Applicant
Procedural Posture
Notice of Motion / 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 failure to substitute within the statutory period.
- 2 Whether the delay in prosecuting the application for substitution justifies dismissal of the suit against the 4th and 5th defendants.
Ratio Decidendi
The court found that the parties failed to comply with its orders to file and exchange written submissions as directed on 15th December 2021. The application to dismiss the suit for abatement was to be canvassed by way of written submissions, but no compliance was shown. As a result, the court dismissed the application with costs, emphasizing the importance of adhering to procedural directions and timelines in litigation. The court did not make a substantive determination on the abatement or substitution issues due to the procedural default.
Court Disposition
application dismissed with costs
Orders
- The application to dismiss the suit for abatement is dismissed with costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISUMU
ELC CASE NO. 50 OF 2016
SELYNA Z. MUSANDU............................................................................APPLICANT
-VERSUS-
THE COMMISSIONER OF LAND.....................1ST DEFENDANT/RESPONDENT
REGISTRAR OF TITLES....................................2ND DEFENDANT/RESPONDENT
THE NATIONAL LAND COMMISSIONER.....3RD DEFENDANT/RESPONDENT
GEORGE ADADA NYAGOWA.......................................................4TH DEFENDANT
CRATER AUTOMOBILE (NBI) LIMITED...................................5TH DEFENDANT
DR. NYAGUDI MUSANDU NYGUNDI...................................................APPLICANT
RULING
BRIEF FACTS
GEORGE ADADA NYAGOWA the 4th Defendant herein filed a Notice of Motion Application under Sections 1A,1B and 3A of the Civil Procedure Act , Order 24 (Rule 3 (2), Order 51 of the Civil Procedure Rules and all other enabling provisions of the law seeking the following orders:
1. That this matter be certified as urgent and be heard ex parte in the first instance.
2. That this Honourable court be pleased to dismiss this suit against the 4th and 5th Defendant which has since abated.
3. That the costs of this application be in the cause.
The Application was based on the grounds that the Plaintiff herein died on 27th May 2019 and the cause of action survives the Plaintiff’s death. That 12 months have since lapsed yet the deceased Plaintiff has not been substituted and that the Defendant continues to suffer unnecessary anxiety due to the delay in the prosecution of the suit.
The Application was supported by the Affidavit of GEORGE ADADA NYAGOWA who deposed and stated that the Plaintiff’s Advocate filed an Application for substitution of the Plaintiff on 13th May 2021 but has failed to prosecute the same. That in the circumstances where a Plaintiff is dead but the suit survives, the suit abates after one year if the Plaintiff is not substituted.
It was stated that the pendency of the suit is causing him needless anxiety, injustice and extreme prejudice given with the passage of time witnesses’ memories continue to fade. That the suit herein ought to be dismissed since it has abated and litigation ought to come to an end.
This matter was filed on 15th December 2021 however, the same was not certified urgent and the court gave orders that the Respondent to respond within 7 days of service and parties to file and exchange submissions within 14 days of the last service.
I have perused the file and confirm that parties did not comply with the orders issued on 15th December 2021 as the Application was to be canvassed by way of written submissions. This Application is hereby dismissed with costs.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 11th DAY OF MARCH, 2022
ANTONY OMBWAYO
JUDGE
This ruling has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2020.