NGARI NDEGENYE v CHARLES GITHINJI & ATTORNEY GENERAL [2008] KEHC 2092 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU

Misc. 36 of 2005

NGARI NDEGENYE…….………..……………………………PLAINTIFF

VERSUS

CHARLES GITHINJI…………….……………………..1ST DEFENDANT

ATTORNEY GENERAL……………………………….2ND DEFENDANT

RULING

Chamber Summons dated the 10th day of July 2007 and amended on 28/1/2008 seeks to substitute a deceased Respondent in this Judicial Review matter.  He holds a grant of letters of Administration in the estate of deceased Respondent.  The applicant is the son of the deceased party.  The death occurred on 12/7/2005.  The Preliminary Objection raised by counsel is that the party to be substituted for died more than 12 months in fact he died more than 3 years past.  Order 23 Civil Procedure Code 4 (3) provides for the time within which an application may be made failing which the suit as against abates.  The applicant has invoked the said order 23 rule 4 (1) Civil Procedure Code empowers the court to cause the legal representative of the deceased to be made a party and shall proceed with the suit Rule 4 (3) provides where no application is made within one year the suit shall abate.

I uphold the Preliminary Objection and declare that suit has abated against this Respondent but it may proceed with the 2nd Respondent who is alive.

Application is dismissed.

Dated this 9th May, 2008.

J. N. KHAMINWA

JUDGE

9/5/2008

9/5/2008

Khaminwa – Judge

Njue- Clerk

Mr. Rukwaro HB for Wairimu

N/A for Muraguri

Read in open court.

J. N. KHAMINWA

JUDGE