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ELCAllowedNot stated in judgment· [2017] KEELC 1964 (KLR)

Micheal Francis Okumu & another v Milton Achieng Odhuk [2017] KEELC 1964 (KLR)

High Court of Kenya
20 July 2017
GOG. M. A. Ongondo
375 words in judgment
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The bottom line

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When a plaintiff in a Kenyan court case dies, the court can simply swap in their estate's legal representative so the case continues without starting over.

What this practically means

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Executive summary

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By a Notice of Motion dated 18th July 2017 brought under Order 8 Rule 3 and Order 24 Rules 1, 2 and 3 of the Civil Procedure Rules together with Sections 1A, 1B and 3A of the Civil Procedure Act, the applicant George Ouma Tharoge sought to be substituted as plaintiff in place of the original plaintiff Tharoge Kathethi, who had died. The applicant relied on letters of administration ad litem granted on 6th July 2016, arguing that the deceased plaintiff could no longer pursue the claim and that substitution was necessary to enable the suit to be prosecuted to final determination, without prejudice to any party. Counsel for the defendant, Mr. Ochwal, raised no objection to the application. The court, Ongondo J, found the application meritorious and allowed it. The draft amended plaint annexed to the application was deemed duly filed and served. The court directed the defendant to file and serve an amended defence within 14 days, with the plaintiff to file any reply within 14 days of service thereof, and fixed mention on 20th September 2017 for pre-trial directions. Costs of the application were ordered to be in the cause. The ruling was delivered at Migori on 20th July 2017. This was an interlocutory first-instance ruling in an ongoing suit, not an appeal, and no authorities were cited in the judgment.

Key legal issues

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01

Substitution of a deceased plaintiff's legal representative under Order 24 of the Civil Procedure Rules

Holding

The court found the application meritorious and allowed the substitution, the defendant having raised no objection.

Reasoning

The applicant produced letters of administration ad litem granted on 6th July 2016, establishing capacity to represent the deceased plaintiff's estate. The original plaintiff having died could not prosecute the suit, and substitution was necessary for the claim to proceed. Counsel for the defendant raised no objection, and the court held that no party would suffer prejudice. The court also deemed the draft amended plaint filed and served and gave directions for amended defence and reply.

p. 2

Legal principles established

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  • Where a plaintiff dies, a duly appointed legal representative of the estate may be substituted as plaintiff to enable the suit to continue, and no party suffers prejudice where the substitution is unopposed.

Court orders

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  1. 1.The Notice of Motion dated 18/7/17 is allowed
  2. 2.George Ouma Tharoge, as legal representative of the Estate of Tharoge Kathethi (deceased), substituted as plaintiff in place of Tharoge Kathethi
  3. 3.The draft amended plaint annexed to the application deemed duly filed and served
  4. 4.Defendant to file and serve amended defence within 14 days from the date of the ruling
  5. 5.Plaintiff to file and serve a reply, if any, within 14 days of service of the amended defence
  6. 6.Mention on 20/9/2017 for pre-trial directions
  7. 7.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 24 Rules 1, 2 & 3
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
Jurisdiction invoked
Order 8 Rule 3 and Order 24 Rules 1, 2 & 3 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Micheal Francis Okumu & another v Milton Achieng Odhuk [2017] KEELC 1964 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1964/eng@2017-07-20

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