Augustine Kipsang Kiptoo v Cheruiyot Arap Sawe [2015] KEELC 795 (KLR)
The bottom line
#A Kenyan court refused to revive a dead plaintiff's lawsuit because the family waited too long and filed the wrong application.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was competent absent a prayer for enlargement of time
The application was incompetent; the court cannot revive an abated suit without enlargement of time under Order 25 Rule 3(2)
The suit abated because substitution was not effected within one year of the plaintiff's death on 13/2/2012. The applicant did not seek enlargement of time as contemplated by Order 25 Rule 3(2) of the Civil Procedure Rules 2010. The court agreed with defence counsel that without such a prayer the revival and substitution orders sought could not be granted.
Whether the 120-day delay in filing the application after issuance of the special grant ad litem was inordinate
The delay of approximately 120 days was inordinate and unexplained, disentitling the applicant to the discretionary orders
The court gave the applicant the benefit of doubt that he was unaware of the suit until June 2014 and found the 14-day delay in applying for the special grant not inordinate. However, between the grant on 13/8/2014 and filing on 12/1/2015 about 120 days elapsed with no explanation. Discretionary orders require candour and judicious exercise, and delay prejudices the defendant.
Legal principles established
#- The court has no power to revive a suit that has abated without an application for enlargement of time
- Whether a delay is inordinate depends on the unique facts and circumstances of each case
- A party seeking discretionary orders must be candid and give sufficient reasons; discretion must be exercised judiciously
- Delay in prosecuting a suit by a plaintiff is prejudicial to the defendant
Court orders
#- 1.The application dated 5/1/2015 is dismissed
- 2.Costs to the defendant
- Jurisdiction invoked
- Inherent discretion of the court under the Civil Procedure Rules 2010 (Order 25 Rule 3(2)) in an interlocutory application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Augustine Kipsang Kiptoo v Cheruiyot Arap Sawe [2015] KEELC 795 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/795/eng@2015-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.