Julius Kiprotich Kiptoo v Kerio Valley Development Authority [2017] KEELRC 1978 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET

CAUSE NO. 148 OF 2017

(Originally Nakuru Cause No. 164 of 2016)

JULIUS KIPROTICH KIPTOO                                               CLAIMANT

v

KERIO VALLEY DEVELOPMENTAUTHORITY             RESPONDENT

RULING

1.  For determination is a motion dated 10 October 2017 seeking

a) …

b) ….

c) An order for substitution of the Claimant herein, now deceased, be made;

d) Mercy Nyambura Kiptoo be made a party to this claim as the legal representative of the estate of Julius Kiprotich Kiptoo and the claimant henceforth, and be allowed to proceed with this suit;

e) The costs of this application be in the cause.

2. On 11 October 2017, the Court directed that the application be served for inter partes hearing on 31 October 2017.

3. According to an affidavit of service sworn by Alubala Andambi Advocate, a hearing notice for the application was served upon the Federation of Kenya Employers which is on record for the Respondent on 13 October 2017.

4. Despite the service, the Respondent did not file any response in opposition to the application.

5. Although the applicant has anchored the application on Order 24 rules 1,2 and 3(1) of the Civil Procedure Rules, it appears from the text of the cited provisions of the rules that those provisions apply in situations where there are more than one Claimant/Plaintiff.

6. This Court cannot tell whether it was a typographical error not to include suits where there is only one Claimant/Plaintiff or whether the question of abatement and substitution within a year of death ought not to apply.

7. Perhaps the Rules Committee may want to look into the issue.

8. The benefit of doubt in such cases would go to an applicant seeking substitution even after one year where there was a single Claimant/Plaintiff.

9. The Court in effect allows the motion and orders

(i)  An amended Statement of Claim be filed and served upon the Respondent within 10 days from today.

(ii) Respondent at liberty to file an amended Response within 10 days of service, if necessary

(iii) Costs in the Cause.

Delivered, dated and signed in Eldoret on this 3rd day of November 2017.

Radido Stephen

Judge

Appearances

For applicant              Mr. Mogambi instructed by Andambi & Co. Advocates

For Respondent         Federation of Kenya Employers

Court Assistants        Nixon/Martin