[2003] KEHC 859 (KLR)
The court found that the suit had abated on 8th April 1998, as no application for substitution was made within one year of the plaintiff's death. The application for substitution was made after abatement, and the lower court did not first revive the suit as required by Order XXIII Rule 8(2) of the Civil Procedure...
Source-derived case information.
- Citation
- [2003] KEHC 859 (KLR)
- Parties
- Appellant: Shriji Builders; Respondent: Joseph Ogada
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 158 of 1999
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Abatement of Suit, Substitution of Parties, Extension of Time, Revival of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shriji Builders
Appellant
Joseph Ogada
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court had jurisdiction to allow substitution after the suit had abated.
- 2 Whether the application for substitution was properly before the court after abatement.
- 3 Whether the learned magistrate exercised discretion judicially in allowing the application for extension of time.
Ratio Decidendi
The court found that the suit had abated on 8th April 1998, as no application for substitution was made within one year of the plaintiff's death. The application for substitution was made after abatement, and the lower court did not first revive the suit as required by Order XXIII Rule 8(2) of the Civil Procedure Rules. Therefore, the magistrate's order allowing substitution was not practicable and was made without jurisdiction. The proper procedure would have been to first apply for revival of the suit before seeking substitution. As a result, the appeal was allowed, and the lower court's order was set aside, confirming that the suit had abated.
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The order of the lower court allowing substitution is set aside.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 158 OF 1999
SHRIJI BUILDERS ……………………………APPELLANT
VERSUS
JOSEPH OGADA ………………………….RESPONDENT
JUDGMENT
The appeal is against the ruling of the Resident Magistrate (M.A. Mlanga) delivered on 8th September, 1999 wherein he allowed an application to extend time for the substitution of the deceased plaintiff with his wife.
The case out of which the ruling subject to this appeal arises was going on in the lower court when the deceased died on 7th April 1997.
His wife Leah Atieno Ogada made an application for letters of administration intestate which were issued on 19th March 1998.
In the meantime the case abated on 8th April 1998.
Then the application giving rise to the ruling subject to this appeal was made on 30th July 1998.
The application was for extension of time within which to substitute the deceased with his said wife which was allowed.
The appellant states in this appeal that the learned magistrate made a mistake in allowing the application as he failed to appreciate the mandatory provisions of order XXIII Rule 3(2) of the Civil Procedure Rules and/or that the trial court had no jurisdiction to revive the suit after it had long abated and/or that the learned magistrate did not exercise his discretion judicially.
The Appeal was fixed for hearing on 11. 3.003 when only counsel for the appellant appeared and submitted on the appeal.
I allowed this counsel to submit on the appeal exparte because though counsel for the respondent had been properly served with a hearing notice, neither the counsel nor the respondent appeared.
Counsel for the appellant stated that by the time the application for substitution was heard there was no case in existence and that the order made by the learned magistrate was not practicable.
Order XXIII Rule 3(1) of the Civil Procedure Rules gives the procedure for appointing a legal representative where a sole plaintiff dies.
Rule 3(2) of the same order provides for the abatement of the suit where an application is not made for legal representation of a deceased plaintiff within one year of such death.
Paragraph 5 of the supporting affidavit to the application subject to this appeal states clearly that the suit abated on 8th April 1998 and if this was the position then an application for substitution could not have been made on 30th July 1998and/or an order made in that behalf on 8. 9.99 in a non-existing suit.
The best way out would have been for the respondent to utilize rule 8(2) of the order to revive the suit before applying for the substitution.
The appeal is merited as the order made by the learned magistrate was not practicable. I allow this appeal and set aside the order of the lower court, thus confirming that the suit subject to this appeal had abated.
There will be no order as to costs.
Delivered this 9th day of April, 2003.
D.K.S. AGANYANYA
PRINCIPAL JUDGE