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ELCDismissedNot stated in the judgment· [2015] KEELC 795 (KLR)

Augustine Kipsang Kiptoo v Cheruiyot Arap Sawe [2015] KEELC 795 (KLR)

High Court of Kenya
22 April 2015
1,718 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was an interlocutory application dated 5 January 2015 in a suit instituted by plaint on 5 May 2000 by Augustine Kipsang Kiptoo against the defendant. The plaintiff died on 13 February 2012 and his son, Joseph Kiprono Sang, sought orders reviving the suit, leave to take over its conduct on behalf of the deceased's estate, and his substitution in place of the deceased. He explained that he only learned of the suit in June 2014 through the late plaintiff's advocate, Mr. Alfred Kingoina Nyairo, obtained a special limited grant ad litem on 13 August 2014, and filed the application on 12 January 2015. The defendant opposed via grounds of opposition, arguing laches, inordinate delay, absence of any prayer for enlargement of time as contemplated by Order 25 Rule 3(2) of the Civil Procedure Rules 2010, and that the suit had abated. The court agreed that without an application for enlargement of time it had no power to revive an abated suit. 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, the approximately 120 days between the grant and the filing of the application was held to be inordinate and unexplained; discretionary powers must be exercised judiciously, and delay prejudices the defendant. The application was dismissed with costs on 22 April 2015.

Key legal issues

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01

Whether the application was competent absent a prayer for enlargement of time

Holding

The application was incompetent; the court cannot revive an abated suit without enlargement of time under Order 25 Rule 3(2)

Reasoning

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.

p. 2
02

Whether the 120-day delay in filing the application after issuance of the special grant ad litem was inordinate

Holding

The delay of approximately 120 days was inordinate and unexplained, disentitling the applicant to the discretionary orders

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 5/1/2015 is dismissed
  2. 2.Costs to the defendant

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 25 Rule 3(2)
Jurisdiction invoked
Inherent discretion of the court under the Civil Procedure Rules 2010 (Order 25 Rule 3(2)) in an interlocutory application

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.