Mary Wanjiru Kanyau v Solomon Muchai Nganga (deceased & another; Daniel Gakuya Muchai (Sued in own capacity and as the administrator of the estate of the late Solomon Muchai Nganga) (Proposed Substitute for 1st Defendant) [2019] KEELC 58 (KLR)
- Court
- Environment & Land Court
- Case number
- 58
- Citation
- [2019] KEELC 58 (KLR)
- Decided
- 19 December 2019
The suit against the 1st Defendant abated on 6/9/2017, and no orders to revive it have been sought and obtained. The Court has no jurisdiction to grant any orders respecting the substitution of the proposed 1st Defendant.
Facts
The 1st Defendant died on 6/9/2016, and the Applicant filed a suit on 13/7/2004. The 1st Defendant was not substituted within one year, leading to the suit abating. The Applicant seeks to substitute the 1st Defendant with the proposed 1st Defendant, who is the Legal Administrator of the estate of the deceased 1st Defendant.
Issues
- Whether the suit is abated as against the 1st Defendant?
- If a is answered in the affirmative, can the suit be substituted as against the 1st Defendant?
- Is the Applicant entitled to orders of interim injunction against the proposed 1st Defendant?
- Who meets the costs of the application.
Reasoning
The death of the 1st Defendant did not cause the suit to abate as the cause of action survived. However, the suit abated due to the failure to make an application for substitution within one year. The Court cannot grant orders for substitution without revival.
Outcome
The application is unmerited and struck out with no orders as to costs.
Authorities cited
Cases cited (1)
- Kenya Farmers’ Cooperative Union Ltd. Vs. Charles Murgor (deceased) t/a Kiptabei Coffee Estate (2005) Eklr
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