Christopher Mwaniki v Jyotee Trivedy & another [2017] KEHC 1567 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL CASE NO.189 OF 2011

CHRISTOPHER MWANIKI..........................................PLAINTIFF

VERSUS

DR JYOTEE TRIVEDY & ANOTHER.....................DEFENDANT

RULING

This matter came up in court on the 3/11/2017 for Notice to show cause why it should not be dismissed for want of prosecution. It was listed pursuant to a notice dated 9/10/2017 issued by the court under the provisions of order 17 Rule 2 of the Civil Procedure Rules.

Counsel for the plaintiff informed the court that the reason why the matter has not been prosecuted is because the plaintiff passed on and the widow having obtained letters of administration wishes to be substituted and prosecute the same. He urged the court to exercise its discretion to save the suit from dismissal.

Both Counsels for the defendants urged the court to dismiss the suit. Counsel for the first defendant submitted that no action has been taken in the suit since 2013 and that the reason given by Counsel for the plaintiff is not a good reason for failure to prosecute the suit. On his part, Mr. Mureithi associated himself with the submissions by the Counsel for the first defendant. He submitted that no reason has been given why no action was taken in the suit between the year 2013 and 2016 when the plaintiff passed on. He urged the court to dismiss the matter.

The court has considered the submissions by the parties herein. I have also perused the affidavit sworn by Dr. Chritopher K. O Kenyariri, the advocate on record for the plaintiff. In the said affidavit, it is stated that the plaintiff died on the 27th August, 2016 after which the family commenced the administration of the estate to identify a suitable administrator.

It is further deponed that the family of the deceased has now identified an adminstratrix who should be substituted with the deceased.

He has asked the court to make an order to substitute the administratrix one Mary Nyakio with the deceased.

The court notes that since the matter was filed in the year 2011 even the pre-trial directions have not been taken. The plaintiff has not even filed witnesses statements to date. Though the plaintiff died in the year 2016, the court was not told why no action was taken in the matter since 16/2/2015 when the pre-trail questionnaire was filed.

The deceased herein died on the 27th August 2016 as shown in the annexed grant of letters of administration, to date no substitution has been done.

Order 24(2) of the Civil Procedure Rules provides that;

“Where within one year no application is made Under sub Rule (1), the suit shall abate so far as the deceased plaintiff 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 plaintiff provided the court may for good reason on application extend time.”

Counsel for the plaintiff has asked the court to substitute the administratrix of the estate with the deceased. As it stands now there is no suit the same having abated on the 26th August 2017, one year after the death of the plaintiff.

The costs of the suit are awarded to the defendants.

Dated, Signed and Delivered at Nairobi this 10thDay of November, 2017.

……………....

L. NJUGUNA

JUDGE

In the Presence of

…………………………. For the Plaintiff

…………………………. For the Defendant