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ELCDismissedNot stated (application dated 24/11/2016)· [2017] KEELC 1787 (KLR)

Stephen Gikonyo Gathugwa v Ruaka Sabuni Development Company & another [2017] KEELC 1787 (KLR)

High Court of Kenya
21 September 2017
KBK. BOR
207 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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You cannot substitute a deceased defendant into a lawsuit that has already been dismissed — revive the suit first, then seek substitution.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 24/11/2016 in which the Plaintiff sought enlargement of time within which to substitute the 2nd Defendant, who had died, with Rose Njambi Njoroge, the administrator of the deceased's estate. The Plaintiff, in his supporting affidavit, stated that he learnt of the 2nd Defendant's death on 9/11/2016. The 2nd Defendant's advocate filed a replying affidavit stating that he had been unable to reach the family of his deceased client and therefore had no instructions to continue acting in the matter. Before determining the application, the court examined the file and noted that the suit had been dismissed on 25/2/2015. The Plaintiff had filed an application dated 17/8/2016 seeking to set aside that dismissal, but that application was never prosecuted. In light of the dismissed status of the suit, the court held that there was no need to consider the application for enlargement of time to substitute the deceased 2nd Defendant. The application dated 24/11/2016 was dismissed with no orders as to costs. The ruling was delivered at Nairobi on 21st September 2017 by K. Bor, Judge, with Mr. Busiega appearing for the Plaintiff, no appearance for the Defendant, and Mr. V. Owuor as Court Assistant. No authorities or statutory provisions were cited in the ruling.

Key legal issues

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01

Whether the court could grant enlargement of time to substitute a deceased defendant

Holding

No - the application failed because the suit in which the substitution was sought had already been dismissed on 25/2/2015

Reasoning

The court examined the record on its own initiative and found the suit had been dismissed on 25/2/2015. The Plaintiff's earlier application dated 17/8/2016 to set aside that dismissal was never prosecuted. Since there was no subsisting suit, there was no vehicle for substitution of the deceased 2nd Defendant's estate, and the application for enlargement of time could not be considered.

p. 2

Legal principles established

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  • An application to enlarge time for substitution of a deceased party cannot be entertained where the suit in which substitution is sought has already been dismissed and the dismissal has not been set aside

Court orders

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  1. 1.The application dated 24/11/2016 is dismissed
  2. 2.No orders as to costs
Jurisdiction invoked
Inherent jurisdiction of the court over its own suit and substitution of parties (not expressly cited in the judgment)

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, "Stephen Gikonyo Gathugwa v Ruaka Sabuni Development Company & another [2017] KEELC 1787 (KLR)", Case Analysis (2017). Not stated (application dated 24/11/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1787/eng@2017-09-21

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