Samwel Makana v Charles Minaro Nyambaso & 2 others; Florence Bochaberi John (Applicant) [2020] KEELC 1212 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Competency of the application by a widow holding an ad litem grant to set aside a judgment against her deceased husband without seeking substitution
The application is incompetent; the other prayers cannot be granted before the Applicant is enjoined in the suit in place of her late husband.
Although the Applicant obtained a limited grant enabling her to represent her deceased husband, the procedure for substitution of deceased parties under Order 24 of the Civil Procedure Rules cannot be overlooked. Her Chamber Summons did not include a prayer for substitution, and none of the other prayers could be granted before she was enjoined. The court agreed with the Respondent's counsel and struck out the application on this ground alone, refraining from any merits determination on setting aside the ex-parte judgment.
Whether the limited ad litem grant conferred power to defend the suit
The grant erroneously indicated it was for filing suit; the court found this to be a clerical error but did not decide the point conclusively as the application failed on competency.
The Applicant explained that she applied for the ad litem grant in Kisii CM Succession Cause No. 406 of 2019 for purposes of defending Kisii ELC Case No. 272 of 2015, but the grant stated it was for filing suit. The court observed that the annexed Petition showed the true purpose and concluded there was a clerical error at the time of issuing the grant. This finding did not cure the failure to seek substitution.
Abatement of suit against a deceased defendant under Order 24 Rule 4
The Respondent argued, citing Washington Namwaya Wasike v Dixon Jowe & 6 Others, that non-substitution within one year led to abatement of the suit against the 2nd Defendant; the court did not make a final finding on this.
Counsel for the Respondent submitted that no steps were taken to substitute the deceased within one year and no application was made to extend time or revive the suit, which had abated by operation of law. The court noted this submission but refrained from deciding the abatement and setting-aside issues, striking out the application on the narrower ground of incompetency so as not to prejudice a fresh application.
Legal principles established
#- An applicant who holds a limited grant ad litem cannot seek to set aside an ex-parte judgment against a deceased defendant without first seeking substitution under Order 24 of the Civil Procedure Rules; the application is incompetent.
- Where no application for substitution of a deceased defendant is made within one year, the suit abates against the deceased defendant (as submitted by the Respondent, citing Washington Namwaya Wasike).
Court orders
#- 1.The application is incompetent and is struck out
- 2.Each party shall bear their own costs
- Jurisdiction invoked
- Inherent jurisdiction of the court under the Civil Procedure Rules, 2010 (interlocutory application to set aside judgment, stay of execution and leave to defend)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samwel Makana v Charles Minaro Nyambaso & 2 others; Florence Bochaberi John (Applicant) [2020] KEELC 1212 (KLR)", Case Analysis (2020). Kisii ELC Case No. 272 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1212/eng@2020-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.