Philip Mwatu Ithuka v Pascal Kyengo Mutevu & another [2020] KEELC 3728 (KLR)

Facts

The Plaintiff/Applicant sought to reinstate a suit and review an order dismissing it for want of prosecution. The Plaintiff claimed that the suit matter is the property of the estate of the late Philip Mwatu Ithuka and that the beneficiaries would be prejudiced if the dispute was not heard on merits. The Plaintiff also argued that the delay in obtaining letters of administration was not his fault.

Issues

1. Whether the suit should be reinstated and the order dismissing it for want of prosecution should be reviewed and/or rescinded.
2. Whether the Plaintiff is properly enjoined to make the application by virtue of the grant of letters of administration ad litem.
3. Whether the court should exercise its discretion to avoid causing injustice to the Plaintiff and have the substantive suit heard and determined on merit.

Reasoning

The court allowed the application because the Plaintiff showed sufficient cause why the suit should be reinstated and explained the reasons for the delay in prosecuting the same. The court exercised its discretion to avoid causing injustice to the Plaintiff and have the substantive suit heard and determined on merit.

Outcome

The application is allowed.

Authorities cited