DKT & another v JMT & another [2017] KEELC 3225 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit had abated
The suit had not abated because the application for substitution was filed within one year of the plaintiff's death.
The plaintiff died on 29 September 2014. The applicants obtained the limited grant on 15 April 2015 and filed the substitution application on 12 August 2015, before the one-year period lapsed. Since Order 24 rule 3(2) provides that a suit abates only where no application is made within one year, the objection based on abatement failed. The court also noted its discretion to extend time for good reason even where the period had lapsed.
Whether the applicants were proper legal representatives entitled to substitution
Yes; the applicants held a Limited Grant of Letters of Administration issued for purposes of pursuing the suit, and their status was undisputed.
The court verified the Limited Grant of Letters of Administration dated 15 April 2015, confirming the applicants were legal representatives of the deceased limited to pursuing the suit. The defendants' grounds of opposition - that the application offended the Mental Health Act and Law of Succession Act, that the applicants were strangers, and that the application was defective - were unsupported by submissions and unsubstantiated.
Whether the real plaintiff was the deceased rather than the guardians ad litem
Yes; the deceased was the real plaintiff, so the death of a sole plaintiff triggered Order 24.
The suit had been instituted by DKT and PKT as guardians ad litem for MWT, who was said to be of unsound mind. The court held that the real plaintiff was the deceased, not the guardians, and therefore the procedure upon death of a sole plaintiff under Order 24 applied, requiring the legal representative to be joined so the suit could proceed.
Legal principles established
#- Where a sole plaintiff dies and the cause of action survives, the court shall on application cause the legal representative to be made a party, provided the application is made within one year of death, failing which the suit abates subject to the court's discretion to extend time.
- A suit does not abate where an application for substitution is filed within one year of the plaintiff's death.
Court orders
#- 1.The two applicants (DKT and PKT) are permitted to be substituted for the deceased plaintiff and to proceed with the suit
- 2.No orders as to costs
- Jurisdiction invoked
- Order 24 Rule 3(1) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "DKT & another v JMT & another [2017] KEELC 3225 (KLR)", Case Analysis (2017). Application dated 3 August 2014 (in suit filed 12 July 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3225/eng@2017-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.