1.The Applicants application dated May 16, 2023 seeks the following reliefs;
2.The application is brought on the grounds that the plaintiff passed away on April 18, 2021 from Covid related complications. Subsequently, there was a delay in filing an application for substitution of the plaintiff who died on April 18, 2021. This resulted in the dismissal of the suit on June 30, 2022. It is the applicants case that the failure to apply for substitution within the one year provided by the law was caused by delay in obtaining letters of administration, which in turn was caused by delay by the registry in forwarding the matter for publication in the Kenya gazette.
3.The Trust Secretary of Defendant filed a Replying Affidavit in which he recounted the number of times the matter was adjourned to allow the applicant to file for substitution. This delay had greatly prejudiced the Defendant.
4.The application was canvassed by way of written submissions. Counsel for the Plaintiff urged the court to allow the application so as to allow the applicant to file an application for revival of the suit and substitution so that the matter can be determined on merit. He submitted that no prejudice would be suffered by the Defendant if the substitution was allowed.
5.On the other hand, counsel for the Defendant submitted that the applicant has not given sufficient cause that would enable the court to allow the application. In any event, counsel argued that the application had no merit.
6.I have considered the application, the Replying Affidavit and the submissions by counsel. The only issue the court has to determine is whether the application for extension of time is merited.
8.The period of the demise of the Plaintiff coincided with the Covid period. This was a period of great disruption at all levels. All sectors were affected. I note that the plaintiff died of covid 19 related complications. Considering the stigma and fear that surrounded the disease at the time it is probable that this could have affected the family in the manner described. This application follows an earlier one which was struck out for failure to seek extension of time. This omission cannot be visited upon the applicant who had instructed a counsel to appear for her.
9.Article 159 of the Constitution places on the court the responsibility to facilitate access to substantive justice. In the context of this case this would require that matter be ventilated and determined on merit.
10.Considering the disruption that was occasioned by Covid and the personal loss that the applicant was dealing with, I find that though the delay was considerable, this is a fit case for the court to exercise its discretion to extend time to file the application for substitution. Consequently, the application is allowed as follows;