1.The plaintiff/applicant vide a notice of motion dated November 14, 2019 brought under order 1 rule 10, order 24 rule 4 & 7 prays for orders:-1)That the Court do revive the case against the 2nd Defendant and substitute the deceased 2nd Defendant with Rose Muthoni Mungere and Nancy Wangithi Mungere.2)That costs of the suit be provided for.
2.The Applicant explained that the 2nd Defendant died on 4/8/2018 and that she had to take out citation proceedings vide Kerugoya CM Succ Cause No. 261 of 2018 to have Rose Muthoni Mungere & Nancy Wangithi Mungere appointed administrators of the deceased estate. The Letters of Administration were issued to the two on 2nd September, 2019 by which time the period of one year had lapsed since the death of the 2nd Defendant. The Plaintiff averred that it took sometime to have the Letters of Administration issued which explained the delay in making the application for the substitution of the 2nd Defendant.
3.The persons intended to be substituted in place of the 2nd Defendant filed grounds of opposition dated February 3, 2020. They argued that the suit against the 2nd Defendant abated on 5th August, 2019 and contended that no sufficient reason had been given that prevented the Plaintiff from prosecuting the suit before the suit abated. Further the intended representatives of the 2nd Defendant contended the claim against the 2nd Defendant had become time barred by the time the suit was filed.
4.I have considered the application, the Affidavit in support and the grounds of opposition filed on behalf of the representatives appointed to administer the Estate of the deceased 2nd Defendant. Considering the Plaintiff had to cite the Respondents before they could agree to take out Letters of Administration to the estate of the deceased 2nd Defendant, I do not consider there was inordinate delay in applying for substitution. From the Affidavit of service of citation filed as an annexture to the application, it is evident that the Plaintiff cited the Respondents in October, 2018 soon after the 2nd Defendant had died in August, 2018. The application for substitution was filed on 15/11/2019 following the issue of the grant of Letters of Administration Intestate to the Respondents on 2nd September, 2019. The delay of 2 months in filing the application from the date of issue of the letters of Administration cannot be said to be inordinate or in excusable considering that further the Plaintiff could not have obtained copy of the same on the same day they were signed by the Court. I therefore, find there is sufficient justification to warrant the court to extend the period for applying for the substitution of the 2nd Defendant and revive the suit against the 2nd Defendant.
5.The other grounds the Respondents have put forth in opposing the application for substitution go to the merits of the suit which the parties will canvass during the trial. I accordingly allow the Plaintiffs application in terms of prayer (1) of the Notice of Motion dated November 14, 2019. The costs of the application will be in the cause.
6.The suit is fixed for mention on 7/6/2023 for pre-trial directions. Any parties who have not complied to ensure compliance by then.