PETER GATHUITA v RUARAKA HOUSING CO. LTD & 2 others [2006] KEHC 2392 (KLR)
- Court
- High Court of Kenya
- Case number
- 2392
- Citation
- [2006] KEHC 2392 (KLR)
- Decided
- 30 May 2006
The application dated 13th January 2005 is dismissed. The plaintiff's estate is required to take steps to ensure the plaintiff is duly substituted, the 2nd defendant is served with the summons, and the 1st defendant's costs are paid within three months.
Facts
The plaintiff passed away in February 2006, and his advocate requested an opportunity to proceed with the case. The plaintiff's advocate filed several applications and applications for substituted service, but the suit was dismissed due to lack of prosecution.
Issues
- Whether the plaintiff's death should affect the dismissal of the suit
- Whether the plaintiff's estate should be given an opportunity to prosecute the suit
Reasoning
The court was inclined to grant the prayers sought but decided against it due to the recent demise of the plaintiff. The court held that justice must be fair to all parties and directed the plaintiff's estate to take steps to prosecute the suit.
Outcome
The application for dismissal of the suit is dismissed.
Orders
- The application dated 13th January 2005 is dismissed.
- The plaintiff's estate is required to take steps to ensure the plaintiff is duly substituted.
- The 2nd defendant is served with the summons to enter appearance, together with the Plaint.
- The 1st defendant's costs, assessed at KShs. 2,000/=, are to be paid by the plaintiff's estate within three months.
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