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ELRCDismissedNot stated in the extract· [2018] KEELRC 2437 (KLR)

Hottensiah Wambui Igogo v Grace Kaiso & another [2018] KEELRC 2437 (KLR)

Employment and Labour Relations Court
16 February 2018
MNMathews N. NdumaMOMaureen Onyango
407 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a lawsuit because the family waited too long to replace a plaintiff who died during the case.

What this practically means

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Executive summary

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The deceased plaintiff died on 10 October 2011. Letters of administration intestate in respect of his estate were granted by the High Court on 2 October 2012 to Perminus Ngugi Igogo, Florence Nyanjau Igogo and Grace Wambui Igogo. The applicants, by an application filed on 24 July 2014, sought an extension of time within which to substitute the deceased plaintiff with the administrators. The respondent opposed, pointing out that the 1st defendant had entered appearance on 18 August 2004 and filed defence on 7 December 2004, but the deceased took no step in the matter until his death, and that even after death, over two years and nine months elapsed before the substitution application was made. The court applied Order 24 Rules 3(1) and 3(2) of the Civil Procedure Rules 2010, which require a substitution application within one year of death, failing which the suit abates, subject to extension of time for good reason. The court found no good reason advanced for the delay and observed that the deceased appeared to have lost interest in the suit, having taken no step to prosecute it for over seven years before his death. The court declined to exercise its discretion in the applicants' favour, held that the suit had abated, and dismissed it with no order as to costs.

Key legal issues

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Whether time for substitution of the deceased plaintiff should be extended under Order 24 Rule 3(2)

Holding

Extension refused; the suit abated and was dismissed

Reasoning

Order 24 Rule 3(1) requires a substitution application within one year of the plaintiff's death. Under Rule 3(2), once that period lapses the suit abates, subject to extension for good reason. The applicants took over two years and nine months after the grant of letters of administration without explaining the delay. Further, the deceased had taken no step in the suit for over seven years before his death, indicating loss of interest. The court therefore declined to exercise its discretion in the applicants' favour.

p. 1

Legal principles established

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  • An application for substitution of a deceased plaintiff must be made within one year of death; where none is made, the suit abates as against the deceased plaintiff unless the court, for good reason, extends time.
  • The court will not exercise its discretion to extend time for substitution where no good reason for the delay is shown and the deceased plaintiff had not prosecuted the suit for years before death.

Court orders

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  1. 1.The application for extension of time to substitute the deceased plaintiff was declined
  2. 2.The suit, having abated, was dismissed with no order as to costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 24 Rule 3(1)
  • Civil Procedure Rules 2010Order 24 Rule 3(2)
Jurisdiction invoked
Order 24 Rules 3(1) and 3(2) of the Civil Procedure Rules 2010 (discretion to extend time for substitution of a deceased plaintiff)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hottensiah Wambui Igogo v Grace Kaiso & another [2018] KEELRC 2437 (KLR)", Case Analysis (2018). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2437/eng@2018-02-16

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