Kairie v Karia Farmers Co-operative Society Ltd & another; Kitashori (The Legal Representative of the Estate of Godfrey Kahiu Karanja) (Applicant) (Environment & Land Case 81 of 2019) [2024] KEELC 1294 (KLR)

2nd Defendant/ Respondent. Continuation of this suit shall amount to an abuse of the court process as it shall consume judicial time and resources. In the supporting afidavit of Peter Sankale Kitashori the grounds of opposition are reiterated. In the replying afidavit the plaintifi states that Peter Sankale Kitashori is already a party to the suit. The suit has not abated and is pending hearing on merit. 4. I have considered the application and the replying afidavit and do find that the 2nd defendant died on 7th October 2019. The suit abated on 7th October 2020. The application for substitution was made on 8th February 2023 and filed on 9th February 2023 approximately two and half years after the suit had abated. Order rule 24 Rules 1 to 4 of the Civil Procedure Rule 2010 provides for death and Bankruptcy of parties thus:3. (1) Where one of two or more plaintifis dies and the cause of action does not survive or continue to the surviving plaintifi or plaintifis alone, or a sole plaintifi or sole surviving plaintifi dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintifi to be made a party and shall proceed with the suit. (2) Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased plaintifi is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintifi. Provided the court may, for good reason on application, extend the time.” 4. 5. Procedure in case of death of one of several defendants or of sole defendant [Order 24, rule 4] 1. Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. 2. Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. 3. Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant. The import of the above is that upon the death of a sole defendant the suit abates as against the deceased defendant. I do find that the suit against the 2nd defendant has abated. It is clear that the 1st defendant was wound up and does not exist and therefore no suit can be entertained against the company. The application dated 9th January 2024 is allowed and the suit is hereby declared as having abated against the 2nd defendant, and is struck out against the 1st defendant. No orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 7TH DAY OF MARCH 2024. A O OMBWAYO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1294/eng@2024-03-07 2

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