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ELCDismissedNot stated in the judgment as provided· [2019] KEELC 1991 (KLR)

Teresia Wangechi Macharia & 2 others v Mbugua Thiga [2019] KEELC 1991 (KLR)

High Court of Kenya
11 July 2019
KBK. Bor
523 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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Mary Wanjiru Mbugua and Ruth Wachuka Wangechi applied by notice dated 27/04/2016 to be substituted in place of the 2nd Plaintiff, Samuel Mwangi Mbugua, who died on 05/12/2014, and to revive the suit. Mary Wanjiru Mbugua, deponing to be co-administrator of the estate with a limited grant dated 09/12/2015, explained the delay by the time taken to amend her petition for the limited grant, which her advocates received on 20/04/2016. Siriaka Waithira Mbugua opposed through grounds of opposition, arguing that the suit had abated under Order 24 Rule 3(2) of the Civil Procedure Rules because substitution was not effected within one year of death, and that the delay was unexplained. In submissions, the Applicants noted the deaths of the 1st Plaintiff (2004), 2nd Plaintiff (2014) and 3rd Plaintiff (July 2018) and sought to allow the application so the new parties could continue the suit. The Respondent countered that a year and a half had lapsed, the suit had abated, and all plaintiffs and the defendant had died, leaving no party to testify. The court found the suit had already abated when the application was filed and that it had not been demonstrated that the suit survived the 1st Plaintiff's 2004 death. The applicant's affidavit did not show sufficient cause preventing timely substitution as required by Order 24 rule 7(2). The application was dismissed with each party bearing its own costs, the court noting this was a family dispute. Judgment was delivered at Nairobi by K. Bor, J, on 11 July 2019.

Key legal issues

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01

Whether the suit had abated by the time the application was filed

Holding

The suit had abated because more than a year had elapsed since the death of the 2nd Plaintiff without substitution.

Reasoning

The 2nd Plaintiff died on 05/12/2014. The application for substitution was filed on 27/04/2016, well beyond the one-year period prescribed by Order 24 Rule 3(2) of the Civil Procedure Rules. The court therefore found that the suit had already abated when the application came before it.

p. 2
02

Whether sufficient cause was shown to warrant revival of the abated suit

Holding

No sufficient cause was demonstrated; the explanation regarding the limited grant did not excuse the delay.

Reasoning

Under Order 24 rule 7(2), an applicant for revival must prove sufficient cause preventing continuation of the suit. The applicant explained that amending the petition for a limited grant took time and that the grant, though dated 09/12/2015, was received by her advocates on 20/04/2016. The court held this did not constitute sufficient cause. It also noted the 1st Plaintiff died in 2004 and it was not shown the suit survived that death.

p. 2

Legal principles established

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  • A suit abates where no substitution of a deceased plaintiff is made within one year of death, and revival requires proof of sufficient cause preventing continuation of the suit.

Court orders

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  1. 1.The application dated 27/04/2016 is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 3(2)
  • Civil Procedure RulesOrder 24 rule 7(2)
Jurisdiction invoked
Order 24 rule 7(2) of the Civil Procedure Rules (application to revive an abated 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, "Teresia Wangechi Macharia & 2 others v Mbugua Thiga [2019] KEELC 1991 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1991/eng@2019-07-11

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