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ELCDismissedApplication dated 5/12/2017 (suit dismissed 26/1/2015)· [2018] KEELC 437 (KLR)

Mohammed Sadique Adam v John Njuguna Nduati & 2 others [2018] KEELC 437 (KLR)

High Court of Kenya
28 November 2018
306 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to revive a dismissed suit because the family waited almost four years after the plaintiff's death to act.

What this practically means

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Executive summary

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By an application dated 5/12/2017 and filed on 1/2/2018, the plaintiff sought to set aside an order of 26/1/2015 dismissing his suit for non-attendance, and further sought the substitution of Habib Mohammed Sadique Adam, the son of the deceased plaintiff, as plaintiff. The deceased plaintiff died on 26/4/2014; the proposed plaintiff obtained letters of administration ad litem on 22/7/2015. The 1st Defendant opposed the application on grounds of res judicata and abatement of the suit. The 2nd Defendant, in a replying affidavit filed on 2/3/2018, detailed the plaintiff's failure to prosecute the suit leading to its dismissal on 27/1/2015, and argued that the deceased plaintiff ought to have been substituted within a year of death; no reasons were given for the failure to substitute before abatement. The Defendants maintained that a suit that has abated does not exist, and that the delay of 3 years and 10 months in bringing the application was inordinate. The court agreed, holding that the delay was inordinate and inexcusable and that no reasons had been given for the long delay in substituting the plaintiff despite letters of administration having issued in 2015. The application dated 5/12/2017 was dismissed with costs to the Defendants. Judgment was dated and delivered at Nairobi on 28 November 2018 by K. Bor, Judge.

Key legal issues

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01

Abatement of suit on death of plaintiff

Holding

The suit abated after the plaintiff's death on 26/4/2014 because no substitution occurred within a year, and the abated suit could not be revived by the application

Reasoning

The court accepted the Defendants' position that the deceased plaintiff ought to have been substituted within a year of his death, that no reasons were advanced for the failure to do so, and that an abated suit does not exist. The proposed plaintiff had obtained letters of administration ad litem in July 2015 yet took no steps until December 2017.

p. 2
02

Inordinate delay in setting aside dismissal

Holding

The delay of 3 years and 10 months was inordinate and inexcusable

Reasoning

The court considered the parties' submissions and agreed with the Defendants that the delay in bringing the application was inordinate. No reasons were given for the long delay in substituting the plaintiff despite letters of administration having been issued to the proposed plaintiff in 2015. The delay was therefore inexcusable and the application could not be allowed.

p. 2

Legal principles established

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  • A suit that has abated following a plaintiff's death and failure to substitute within a year effectively does not exist, and inordinate unexplained delay justifies refusing to set aside a dismissal

Court orders

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  1. 1.The application dated 5/12/2017 is dismissed with costs to the Defendants
Jurisdiction invoked
Inherent and procedural jurisdiction to set aside an ex parte order of dismissal of suit and to consider substitution of a deceased plaintiff (abatement of suit)

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, "Mohammed Sadique Adam v John Njuguna Nduati & 2 others [2018] KEELC 437 (KLR)", Case Analysis (2018). Application dated 5/12/2017 (suit dismissed 26/1/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/437/eng@2018-11-28

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