Ochong’ Okelo v Judy Akinyi Oduor Aguka & 16 others [2018] KEELC 3503

What I have before me are two applications brought by the Defendants and the 1 st, 3rd, 4th, 6th, 7th, 8th, 9th, 10th and 13th interested parties. The defendant’s application is dated 12th April, 2017. It seeks the dismissal of the suit for want of prosecution. In the alternative, it seeks the discharge and setting aside of the orders of injunction that were made infavour of the Plaintiff on 30th April, 2012. On the other hand, the interested parties’ application is seeking a declaration that this suit has abated and that the same is not pending. The interested parties are also seeking a declaration that the injunctive orders that were granted by the court infavour of the plaintiff on 30th April, 2012 have lapsed and should be discharged. The two applications were argued together before me on 31st July, 2017. I have considered the applications together with the affidavits filed in support thereof. I have also considered the submissions that were made before me by the advocates for the parties and the authorities that were cited in support thereof. The Plaintiff filed this suit against the defendants on 9 th February, 2011. The interested parties were subsequently added to the suit. On 30th April 2012, the court granted orders for the maintenance of status quo in relation to the suit properties. The said orders restrained all the parties from alienating the suit properties and from carrying out any further construction thereon pending the hearing and determination of the suit herein. When the suit came up for hearing on 29th June, 2016 the Plaintiff’s advocate informed the court that the plaintiff had died in May, 2016. The Plaintiff’s advocate sought adjournment to enable him apply for substitution of the Plaintiff with his legal representative. As at 16th June, 2017 when the applications before me were filed, no application had been made for the substitution of the Plaintiff with his legal representative. According to the death and funeral announcement that was carried in the Daily Nation Newspaper of 27th May, 2016, the Plaintiff was buried on 11th June, 2016. Under Order 24 Rule 3(1) and (2) of the Civil Procedure Rules, the legal representative of the Plaintiff should have made an application within one (1) year (which should have been by the end of May, 2017) to substitute the deceased Plaintiff. The application for substitution was not made within one year and had not been made as at the time the applications before me were argued on 31st July, 2017. Order 24 Rule 3(2) of the Civil Procedure Rules provides that when an application for substitution of a sole plaintiff is not made within one year, the suit abates. It was not contested at the hearing of the applications before me that this suit has abated. What was contested is whether the orders sought by the applicants can be granted in a suit that has abated. The authorities that were cited before me are unanimous that when a suit has abated, it ceases to exist. Such a suit cannot be tried. I am in agreement with the former advocate for the deceased Plaintiff who appeared in court during the hearing of the applications that, apart from an order that a suit has abated, the court cannot make any substantive order in a suit that has abated. Due to the foregoing, the court cannot grant the substantive orders sought in the defendants’ application dated 12th April, 2017. The court cannot also grant prayers 3 and 4 of the interested parties’ application. In the final analysis, the orders that commend themselves to me and which I hereby make in the two applications before me are the following: 1. I declare that this suit has abated as relates to the claim by and against the plaintiff and consequently, the orders that were made herein in favour of and against the plaintiff stand discharged on account of that abatement. 2. The Defendants are awarded the costs of the suit as against the deceased Plaintiff to be paid by his estate. Delivered and Dated at Nairobi this 19th day of April, 2018 S. OKONG’O JUDGE

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Ruling read in open court in the presence of Ms. Oriwo Plaintiff No appearance 1st Defendant No appearance 2nd Defendant Mr. Thuo Interested parties Mr. Waweru Court Assistant

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