Margaret Kyalo v Equity Bank (K) Limited [2021] KEELC 4470 (KLR)
- Court
- Environment & Land Court
- Case number
- 4470
- Citation
- [2021] KEELC 4470 (KLR)
- Decided
- 20 January 2021
If the plaintiff died on 28 January 2018, the suit is marked as abated. If the plaintiff is not deceased, the suit is dismissed for want of prosecution.
Facts
The plaintiff filed a suit on 20 July 2017 seeking to stop the defendant from selling the suit property. The plaintiff died on 28 January 2018, and the case was stood over generally. The defendant filed an application seeking to mark the suit as abated or dismissed for want of prosecution.
Issues
- Whether the plaintiff died on 28 January 2018
- If the plaintiff died, whether the suit should be marked as abated
- If the plaintiff is not deceased, whether the suit should be dismissed for want of prosecution
Reasoning
The plaintiff died on 28 January 2018, and the case was stood over generally. The plaintiff needed to be substituted within one year of death or the suit would abate. Since no proof of death was provided, the suit abated. If the plaintiff is not deceased, the suit is dismissed for want of prosecution.
Outcome
The suit is marked as abated if the plaintiff died on 28 January 2018, or dismissed for want of prosecution if the plaintiff is not deceased.
Orders
- The suit is marked as abated if the plaintiff died on 28 January 2018.
- The suit is dismissed for want of prosecution if the plaintiff is not deceased.
Remedies
- The costs of the suit will be to the defendant/applicant payable by the estate of the plaintiff in the event that she is deceased, or payable by the plaintiff herself, in the event that she is alive.
Authorities cited
Legislation (3)
- Civil Procedure Rules, 2010
- Order 24, Rule 3
- Order 17, Rule 2
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