Kiprotich Korir & another v Shiyotor Holdings Limited [2017] KEELC 190 (KLR)
The bottom line
#A Mombasa court dismissed a land suit left idle for over a year and rejected an affidavit sworn by an unidentified person claiming to represent a deceased plaintiff.
What this practically means
#Executive summary
#Key legal issues
#Validity of the 2nd plaintiff's replying affidavit
The replying affidavit was struck out because the deponent's name was not disclosed and he purported to swear as the deceased 2nd plaintiff, contravening Order 19 rules 3(1) and 4, leaving the application unopposed.
The deponent only stated he was the son of the deceased 2nd plaintiff without identifying himself, his description, place of abode or postal address, and without annexing any authority from the family. The court doubted whether the facts deponed to were within his knowledge and found the affidavit an abuse of process warranting striking out.
Want of prosecution
The suit was dismissed for want of prosecution as neither plaintiff showed cause; the suit had not been set down for hearing for over one year since February 2016 despite a second chance.
The court had earlier declined a similar dismissal application on 12th February 2016 and directed compliance with Order 11, yet no steps were taken to fix the matter for hearing after 7th July 2016. No justifiable reason was offered in the replying affidavit, and the court rejected the argument that the obligation to set down was mutual, accepting that the burden was greater on the plaintiff.
Abatement of the 2nd plaintiff's suit
The 2nd plaintiff's suit abated because he died on 3rd November 2015 and no substitution application was made within one year as required under Order 24 rule 3(2).
Counsel for the 2nd plaintiff could not explain why he had not advised the family to take out letters of administration and substitute the deceased plaintiff. No evidence of such steps was produced, so the court could not apply the proviso to Order 19(3)(2) in the family's favour, despite the cultural entitlement argument under Article 11 of the Constitution.
Legal principles established
#- An affidavit must state the deponent's identity, description, place of abode and postal address; an affidavit sworn by an unidentified person in purported representation of a party is an abuse of process and may be struck out.
- Where a plaintiff dies and no application to substitute is made within one year, the suit abates so far as the deceased plaintiff is concerned, and the defendant may be awarded costs of defending the suit.
- Where no cause is shown under Order 17 rule 2, a suit is liable to be dismissed for want of prosecution, and the burden of setting the suit down lies primarily on the plaintiff.
Court orders
#- 1.The replying affidavit dated 25th September 2017 is struck out as an abuse of the Court process
- 2.The plaintiffs' suit is dismissed for want of prosecution in terms of prayer 1 of the notice of motion dated 10th July 2017
- 3.Costs of the suit and of the application are awarded to the defendant/applicant
- Jurisdiction invoked
- Article 162(2)(b) and 165(3) of the Constitution, 2010; Order 17 rule 2(1) & (3) and Order 2 rule 15(1)(b), (c) & (d) of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiprotich Korir & another v Shiyotor Holdings Limited [2017] KEELC 190 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/190/eng@2017-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.