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ELCAllowedNot stated in judgment· [2017] KEELC 1144 (KLR)

Gregory Kimani Thuita v Administrators of the Estate of David Muriuki Kaberere & 2 others [2017] KEELC 1144 (KLR)

High Court of Kenya
1 November 2017
384 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court reinstated a suit dismissed without notice and allowed the late plaintiff's family to take over the case.

What this practically means

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Executive summary

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The Plaintiff applied by notice dated 8/6/2017 to set aside an order made by Justice Mutungi on 26/5/2015 dismissing the suit, and by application dated 11/11/2016 sought substitution of the Plaintiff with the legal representative of his estate. The Plaintiff had died on 14/3/2015; Hannah Wanjiru Kimani and Regina Murugi Kimani obtained a limited grant of letters of administration ad litem on 24/9/2015 and were substituted for the purpose of the applications. The applicant's position was that the suit was dismissed by the court of its own motion without the Plaintiff ever being served with a notice to show cause or afforded a chance to be heard. The applications were supported by the affidavit of the Plaintiff's Advocate. The Defendants were served but neither attended court nor filed responses. K. Bor J applied Order 12 Rule 7 of the Civil Procedure Rules, permitting the court to set aside a dismissal upon such terms as may be just, and Order 24 Rule 7, under which a legal representative prevented by sufficient cause from continuing a suit may have it revived or a dismissal set aside. Both applications were granted on condition that the suit be heard and determined within six months, failing which it would stand dismissed without further orders. Costs were ordered to be in the cause. Judgment was delivered at Nairobi on 1 November 2017.

Key legal issues

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01

Setting aside dismissal without notice

Holding

The dismissal was set aside because the Plaintiff was never served with a notice to show cause and was not heard before dismissal.

Reasoning

The court invoked Order 12 Rule 7, which permits setting aside a dismissal order upon such terms as may be just. The Plaintiff maintained he was never served with a notice to show cause, meaning the suit was dismissed by the court of its own motion without affording him a chance to be heard. The Defendants were served with the applications but neither attended court nor filed responses, leaving the applications unopposed.

p. 2
02

Substitution of deceased Plaintiff by legal representative

Holding

Substitution of the deceased Plaintiff by his legal representatives was granted under Order 24 Rule 7.

Reasoning

The Plaintiff died on 14/3/2015 and it was asserted that the cause of action survived him. Hannah Wanjiru Kimani and Regina Murugi Kimani obtained a limited grant of letters of administration ad litem on 24/9/2015. Under Order 24 Rule 7 a legal representative may apply to revive an abated suit or set aside a dismissal where prevented by sufficient cause. The court granted both applications, conditional on the suit being heard and determined within six months.

p. 2

Legal principles established

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  • Where a suit has been dismissed, the court may set aside the dismissal order upon such terms as may be just.
  • A legal representative of a deceased Plaintiff may apply to revive an abated suit or set aside a dismissal if prevented by sufficient cause.

Court orders

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  1. 1.The applications dated 11/11/2016 and 8/6/2017 are granted on condition that the suit is heard and determined within six (6) months, failing which the suit shall stand dismissed without further orders
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 24 Rule 7
Jurisdiction invoked
Order 12 Rule 7 and Order 24 Rule 7 of the Civil Procedure Rules

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, "Gregory Kimani Thuita v Administrators of the Estate of David Muriuki Kaberere & 2 others [2017] KEELC 1144 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1144/eng@2017-11-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.