Koech v Koech & 3 others; Jepkorir (Applicant)

2. The application is based on grounds, interalia, that the Applicant Peris Jepkorir Kitur, seeks to be substituted in place of the original Plainti’s Georey Cheruiyot Koech who has passed on. 3. The matter was dismissed on 24th July 2019 for non-attendance of Counsels for the parties, the nonattendance by the Applicant’s Counsel on 24th July 2019 having been occasioned by unavoidable circumstances. 4. That the failure to communicate the non – attendance to the Court was the mistake of the Plainti’s Counsel which should not be visited upon the Applicant. 5. The application is made timeously since there was the outbreak of Covid 19 pandemic and could not follow up the progress since there was an order to stay indoors. 6. That she has prima facie with probability of success. 7. The application is supported by the Adavit of Peris Jepkorir Kitur who reiterates the grounds in support of the application and has annexed a death certicate of the (deceased) Plainti as well as copies of title deed and green card, and the order dismissing the suit for want of prosecution. 8. In opposition to the application, the 2nd Defendant has led a Replying Adavit through its Advocate Mr. Daniel L. Were, while the 3rd and 4th Defendants are not opposed to the application. 9. In his reply, Mr. Were Counsel for 2nd Defendant depones that on 3/4/2017 the Plaintis’ Counsel informed Court that the Plainti had passed on, and on 24/7/2019, there was no substitution and the suit was dismissed for want of prosecution. 10. The 2nd Defendant further avers that the suit had abated in terms of orders 24 Rule 3. That it had taken the Applicant 3 years to challenge the dismissal order, which delay is inordinate and should not be entertained by the Court; and that in any event the Applicant has no locus standi to institute the present applicatio9n in place of the deceased. 11. The 2nd Defendant thus urges the Court to dismiss the application. 12. Parties were directed to le submissions on the application. The Applicant opted to rely on the supporting adavit as led and did not le submissions, whilst the 2nd Defendant/Respondent led its submissions. 13. I have perused and analysed the application the adavits in support and in opposition and submissions on record and the Court frames the following as the issue for determination. i) whether or not the Applicant has locus standi to le this instant application ii) whether the application is merited. 14. The issue of locus standi was raised in the Replying Adavit of Mr. Were Advocate for the 2nd Defendant. It is not in contention that Georey Koech, the Plainti in this suit is now deceased. The Applicant having exhibited before Court the death certicate. The Applicant further describes herself as the widow of Gerey Cheruiyot Koech. 15. under Order 24 Rule 3, an application to revive a suit that has abated ought to be led within one year even though the time to le the application may be enlarged. Such an application however ought to be led an administrator of the Estate of the deceased. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20340/eng@2023-09-28 2

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16. The Applicant herein other than describing herself as the widow of Georey Cheruiyot Koech has not exhibited before Court a Grant of Letters of administration that would give her locus to le the application before Court. 17. Consequently, the Applicant lacks locus to initiate the substitution application and revival of the suit that had been dismissed for want of prosecution. 18. In the result, the application having been led by a stranger is hereby struck out and the suit remains dismissed for want of prosecution pursuant to the Orders made on 24/7/2019 by Hon. Lady Justice M. A. Odeny. RULING, DATED AND DELIVERED AT KAPSABET THIS 28TH SEPTEMBER, 2023. HON. M. N. MWANYALE JUDGE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20340/eng@2023-09-28 3

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