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ELCPartially Allowed· [2018] KEELC 4834 (KLR)

Teresa Namaemba Wasike v Wilson Wafubwa Namachanja & 3 others [2018] KEELC 4834 (KLR)

High Court of Kenya
10 January 2018
1,296 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by S. Mukunya J at Bungoma determined an application under Order 24 rule 3(2) of the Civil Procedure Rules 2010 seeking a declaration that the suit had abated following the death of the sole plaintiff on 15/11/2014. The applicant, Kennedy Waswa Namachanja, argued that no substitution was effected within one year of death, so the suit abated on 15/11/2015. Martin Muhindi Masumbuko, describing himself as the deceased's legal representative, opposed the application and sought reinstatement of the suit, his substitution in place of the deceased, and adoption of a consent dated 5/4/2016, explaining delay by his work in Iraq and difficulties obtaining a limited grant ad litem, which was issued by the High Court Bungoma on 15/3/2017. The court reviewed the procedural history, noting that plaintiff's counsel had repeatedly sought time to substitute from May 2014 yet never did so, despite knowing the provisions of Order 24 rule 3(1) and (2). The court held there was no good reason to extend time: counsel was indolent, the limited grant issued four months after abatement, and the consent was entered into with a non-party. The application of 14/10/2016 was allowed as prayed, declaring the suit abated; the respondent's application of 17/3/2017 was struck out with costs to the applicant. The ruling was delivered in open court on 10 January 2018.

Key legal issues

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01

Whether there was good reason to extend time for substitution

Holding

No. Counsel for the plaintiff had ample time and repeated court indulgence to substitute but was indolent, and the limited grant was issued only after abatement.

Reasoning

The court traced the conduct of plaintiff's counsel from 5/5/2014, when illness and possible substitution were mentioned, through repeated adjournments for substitution up to 23/11/2015. Counsel knew or ought to have known of Order 24 rule 3(1) and (2) and should have sought extension of time before the one year lapsed. The limited grant ad litem was issued on 15/3/2017, four months after the suit abated, so nothing survived to prosecute, and the consent was entered into with a non-party.

p. 2
02

Effect of abatement on subsequent applications and consents

Holding

Once a suit abates, an application filed in it has no legal foundation and a consent entered with a non-party cannot be adopted.

Reasoning

The suit abated on 15/11/2015 when no substitution was effected within one year of death. The respondent's application of 17/3/2017 was therefore filed in an abated suit and had nowhere to stand. The Deputy Registrar had declined to endorse the consent of 5/4/2016 because Martin Muhindi Masumbuko was not a party to the suit, and the court held that a consent with a non-party could not stand.

p. 3

Legal principles established

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  • Under Order 24 rule 3, where a sole plaintiff dies, an application for substitution by a legal representative must be made within one year of death, failing which the suit abates, unless the court extends time for good reason.
  • An application filed in a suit that has already abated is a nullity and cannot stand.

Court orders

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  1. 1.The application dated 14/10/2016 is allowed as prayed (that the suit has abated)
  2. 2.The application dated 17th March 2017 is struck out
  3. 3.Costs of the application dated 17/3/2017 to the applicant
Jurisdiction invoked
Order 24 rule 3(2) of the Civil Procedure Rules 2010

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, "Teresa Namaemba Wasike v Wilson Wafubwa Namachanja & 3 others [2018] KEELC 4834 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4834/eng@2018-01-10

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