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ELCAllowedEmbu High Court Civil Suit (notice of motion dated 16th August 2018, amended 22nd October 2018)· [2019] KEELC 4452 (KLR)

David Mwaniki Mbiti (Deceased) v Jane Wangui Nguru; Thomas Mugo Mbiti (Applicant) [2019] KEELC 4452 (KLR)

High Court of Kenya
28 February 2019
YAY.M. Angima
879 words in judgment
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The bottom line

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Kenya's High Court confirmed a lawsuit survives a plaintiff's death, allowing substitution even after the one-year deadline when delays were unavoidable.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 16th August 2018 and amended on 22nd October 2018, brought under section 1A of the Civil Procedure Act and Order 24 Rule 3(2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The applicant, Thomas Mugo Mbiti, brother of the deceased plaintiff David Mwaniki Mbiti, sought extension of time to apply for substitution, reinstatement of the suit, and his substitution in place of the deceased plaintiff, having obtained a limited grant of letters of administration ad litem. The defendant opposed, contending the application was incompetent and that no cause of action survived the plaintiff's death because he had sued as personal representative of the estate of Mbiti Muthigire. The court identified the main issue as whether the applicant had made out a case for the orders sought. It held that although Order 24 Rule 3(2) requires substitution applications within one year of death, the proviso permits extension for good reason; the delay was explained by the fact that letters of administration ad litem were only obtained on 9th July 2018, without which no substitution could be sought. On survival, the court applied section 2 of the Law Reform Act, under which causes of action survive death except defamation, seduction and adultery claims, and rejected the defendant's unsupported proposition. The application was allowed in terms of orders 1 and 2, with costs in the cause.

Key legal issues

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01

Extension of time for substitution of a deceased plaintiff under Order 24 Rule 3(2)

Holding

Good reason existed for extension: the delay was attributable to the time taken to obtain letters of administration ad litem, without which no substitution application could be made.

Reasoning

The plaintiff died on 31st October 2015 but letters of administration ad litem were only obtained on 9th July 2018. The court reasoned that the suit could not proceed and no substitution application could be made without a grant. The delay was therefore explained and the proviso to Order 24 Rule 3(2) was engaged, justifying extension of time.

p. 2
02

Whether the cause of action survived the plaintiff's death where he had sued as a personal representative

Holding

The defendant's objection failed; under section 2 of the Law Reform Act causes of action survive a deceased person's death except for specified torts, and no authority was cited for the contrary proposition.

Reasoning

The defendant contended that no cause of action survived because the deceased plaintiff had filed suit as a personal representative of Mbiti Muthigire's estate, but cited no authority. Section 2 of the Law Reform Act provides for survival of causes of action except defamation, seduction and adultery claims. The court found the defendant's proposition unsound and rejected it.

p. 2

Legal principles established

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  • Under the proviso to Order 24 Rule 3(2), the court may for good reason extend the one-year period within which an application for substitution of a deceased plaintiff must be made; inability to obtain letters of administration ad litem constitutes good reason.
  • By virtue of section 2 of the Law Reform Act, causes of action vested in a deceased person survive for the benefit of his estate, except for defamation, seduction or inducement to leave a spouse, and damages for adultery.

Court orders

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  1. 1.Extension of time within which to file an application for substitution and reinstatement of the suit (order No. 1 of the motion)
  2. 2.Thomas Mugo Mbiti substituted in place of David Mwaniki Mbiti, the deceased Plaintiff (order No. 2 of the motion)
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure Rules, 2010Order 24 Rule 3(1) and (2)
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Law Reform ActSection 2
Jurisdiction invoked
Section 1A of the Civil Procedure Act (Cap 21), Order 24 Rule 3(2) and Order 51 Rule 1 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, "David Mwaniki Mbiti (Deceased) v Jane Wangui Nguru; Thomas Mugo Mbiti (Applicant) [2019] KEELC 4452 (KLR)", Case Analysis (2019). Embu High Court Civil Suit (notice of motion dated 16th August 2018, amended 22nd October 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4452/eng@2019-02-28

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