Thuo v Kahenya (Environment & Land Case 160 of 2012) [2024] KEELC 7281 (KLR)

2nd defendant within 12 months from the date of death but did not do so. The respondent contends that the applicant knew of the death of the 2nd defendant but took no action until 10th July 2024. 4. Order 24 of the civil procedure rules 2024 makes provision for cases where the parties are deceased thus:24.1. The death of a plaintifi or defendant shall not cause the suit to abate if the cause of action survives or continues. 2. ………… 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 sub-rule (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. 4. ……… 5. ……… 6. ……… 7.1. Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on thesame cause of action. 2. The plaintifi or the person claiming to be the legal representative of a deceased plaintifi or the trustee or oficial receiver in the case of a bankrupt plaintifi may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, if it is proved that he was prevented by any suficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit”. I have considered the application and rival submissions and do find that the applicant has justified his delay in making the application for substitution. To begin with the 2nd defendant was the adversary in the suit and that it was the family of the deceased 2nd defendant thus Sybella Wanjiku Gitiha that was required to process a grant of letters of administration ad litem and apply for substitution and proceed with the case but they never did so. The plaintifi took upon herself the onerous task of procuring the grant of letters of administration ad litem in the name of Joshua Gitiha Nganga. The ruling was delivered on 19th June 2024. The grant ad litem was availed on 9th July 2024. The plaintifi seeks the revival of the suit against the 2nd defendant. I do find that the applicant has given suficient reasons for his failure to substitute the 2nd defendant. I do grant orders that the suit against the 2nd defendant Sybella Wanjiku Gitiha who is deceased is hereby revived and that the time to bring in her legal representative Joshua Gitiha Ng’ang’a is hereby enlarged. That the 2nd defendant is hereby https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7281/eng@2024-10-30 2

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substituted with Joshua Gitiha Ng’ang’a who is the administrator ad litem of her estate for purposes of defending the suit. Cost of the application in the cause. SIGNED BY: HON. JUSTICE ANTONY O. OMBWAYO THE JUDICIARY OF KENYA. NAKURU ENVIRONMENT AND LAND COURT 2024-10-30 https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7281/eng@2024-10-30 3

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