Kiiru v Ndapana & another (Both as Personal Representatives and Administrators of the Estate of Ndapana Ole Kiriambu as well as Personal Representatives and Administrators of the Estate of Salome Warigia Ndapana)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Abuse of process
The application was not an abuse of process; seeking reinstatement of a dismissed suit is a party's right under Order 45.
The court applied the definitions of abuse of process from Black's Law Dictionary and Bullen & Leake, finding no mischief, ulterior motive, or intent to delay or obstruct justice, and no prejudice to the respondent incapable of being cured by costs.
Setting aside the dismissal order of October 3, 2022
The dismissal order was set aside in the interest of justice so the applicant could be heard on the merits.
The suit abated 8 years before the revival application, but the cause of action (adverse possession claim over land) survived the plaintiff's death. The respondent failed to demonstrate prejudice not compensable by costs, and the delay was attributable to counsel's failure to apply for substitution, which should not be visited on the client.
Review of the October 3, 2022 ruling
Review refused; no ground under Order 45 was demonstrated.
The applicant showed no mistake apparent on the face of the record, no discovery of new and important matter, and no other sufficient reason. The court, however, declined to construe 'any other sufficient cause' ejusdem generis with the preceding grounds.
Substitution of the deceased party
Substitution of the late Harun Ng'ang'a with the Administrator of his Estate was allowed.
A prior false start did not prejudice the applicant's right to move the court once the dismissal order was set aside. Guided by Sections 1A and 3A of the Civil Procedure Act and Articles 48, 50 and 159 of the Constitution, the court favoured a hearing on the merits despite the 8-year delay.
Costs
Applicant deprived of costs and ordered to pay the respondent Kshs 30,000/- because counsel's confusion caused the default.
Although costs follow the event, the court found the applicant's counsel failed to apply for substitution, having been confused by the stay order issued by Justice Nyamweya, so the applicant was deprived of costs despite succeeding.
Legal principles established
#- A party seeking reinstatement of a dismissed suit is not abusing court process; it is within their right under Order 45.
- Not every mistake or blunder by an advocate should be visited upon the client; a party should not be driven out of the seat of justice without a hearing on the merits.
- Where a suit abates or is dismissed under Order 24, no fresh suit may be brought on the same cause of action.
Court orders
#- 1.Prayer 1 partially allowed by setting aside the order dated October 3, 2022 and reviving the Originating Summons filed on August 25, 2005.
- 2.Prayer 2 allowed by allowing substitution of the late Harun Ng'ang'a with the Administrator of his Estate.
- 3.The application for review of the ruling dated December 3, 2022 dismissed.
- 4.Applicants to pay the respondent costs of the application in the sum of Kshs 30,000/-.
- 5.Applicant directed to prosecute the suit within 90 days in default of which the suit shall stand dismissed for want of prosecution under Order 17 of the Civil Procedure Rules.
- 6.Parties referred to the Deputy Registrar for Pre-Trial Conference on August 21, 2023.
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act Cap 21; Order 45 & 51 of the Civil Procedure Rules, 2010; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiiru v Ndapana & another (Both as Personal Representatives and Administrators of the Estate of Ndapana Ole Kiriambu as well as Personal Representatives and Administrators of the Estate of Salome Warigia Ndapana)", Case Analysis (2023). Environment & Land Case 1616 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19011/eng@2023-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.