[2005] KEHC 547 (KLR)
The court found that both plaintiffs had died and no legal representative had been substituted within the one-year period prescribed by Order 23 rule 3(2) of the Civil Procedure Rules. Accordingly, the suit was marked as abated. The court further held that the defendant was not entitled to automatic judgment on the...
Source-derived case information.
- Citation
- [2005] KEHC 547 (KLR)
- Parties
- Plaintiff: Walter Kundert; Plaintiff: Doris Kundert; Defendant: Warda Mohamed Shali
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 117 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application for Abatement and Counterclaim
- Outcome
- Suit abated; no automatic judgment on counterclaim; costs to defendant.
- Legal Topics
- Abatement of Suit, Substitution of Parties, Counterclaim Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Walter Kundert
Plaintiff
Doris Kundert
Plaintiff
Warda Mohamed Shali
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Abatement and Counterclaim
Legal Issues
- 1 Whether the suit should be marked as abated due to the death of both plaintiffs and lack of substitution within the prescribed period.
- 2 Whether the defendant is entitled to automatic judgment on the counterclaim following abatement of the main suit.
Ratio Decidendi
The court found that both plaintiffs had died and no legal representative had been substituted within the one-year period prescribed by Order 23 rule 3(2) of the Civil Procedure Rules. Accordingly, the suit was marked as abated. The court further held that the defendant was not entitled to automatic judgment on the counterclaim as a result of the abatement, since a counterclaim is to be treated as a separate suit and must proceed independently. Costs were awarded to the defendant as provided by law.
Court Disposition
Suit abated; no automatic judgment on counterclaim; costs to defendant.
Orders
- The suit is marked as abated under Order 23 rule 3(2) Civil Procedure Rules.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Suit 117 of 2001
1. WALTER KUNDERT
2. DORIS KUNDERT .........................……………………................…… PLAINTIFFS
- Versus -
WARDA MOHAMED SHALI ..................................................................... DEFENDANT
Coram: Before Hon. Justice Mwera
Khatib for applicant
Lijodi for respondent
Court clerk – Mitoto
RULING
By a Chamber Summons dated 24th March 2005 the defendant invoked O23 r. 3(2) Civil Procedure Rules and Section 3A Civil Procedure Act praying that the suit herein be marked as having abated because the 2 plaintiffs have since died. He also sought judgement on the counter claim.
Mr. Khatib submitted and Mr. Lijodi appeared to agree that the 1st plaintiff died in 1999. The 2nd plaintiff who then became the legal representative of the 1st plaintiff, also she died on 5th November 2003. That there had been no substitution (by her legal representative) since and so the suit has abated. Yes. From the time of death to the time this application was filed a year had gone by without substituting the dead plaintiff (s) and so under O23 r. 3(2) Civil Procedure Rules the suit has abated and it is thus so marked. Costs to the defendant in terms of that provision of law.
As for the counter – claim the defendant will not automatically get judgement following the above ruling. In essence a counter – claim is and can be treated as a separate suit. The defendant will take due course as regards further proceedings in it.
Orders delivered on 29th December 2005.
J.W. MWERA
JUDGE