1.Beatrice Jelagat Muge, the Applicant herein filed a Notice of Motion dated March 23, 2023 pursuant to Order 12 Rule 7 Order 24 Rule 7(2) and Order 45 Rules 1 and 2 and Order 51 of the Civil Procedure Rules seeking the following orders:
2.The application is based on the grounds stated on the face of the Notice of Motion and the Applicant’s supporting affidavit sworn on March 23, 2023.
3.In her supporting affidavit the Applicant has explained that she is one of the beneficiaries of the late John Kimuge Kessei who passed away on July 7, 2017. After his demise they applied for a Grant of Letters of Administration. However unbeknownst to her the suit was dismissed on November 11, 2019. She would therefore like to substitute him and revive the suit herein.
4.The application is opposed by the Respondents through the Replying affidavit of Japheth Serem sworn on the May 2, 2023 in which he avers that there has been inordinate delay in bringing the application and that there are no good grounds for reinstating the suit. He accuses the Applicant of casting aspersions on the plaintiff’s advocate without any evidence and adds that that the matters deponed do not amount to an excusable mistake to warrant the application being granted.
5.The application was canvassed by way of written submissions and both parties filed their submissions which I have considered.
6.Having considered the application, rival submissions and the applicable law and authorities, the main issues for determination are:
Analysis and determination
7.Order 24 Rule 4 of the Civil Procedure Rules provides for the effect of death of one of several Defendants or of the sole Defendant. It states that:Additionally Rule (7)(2) provides as follows;
8.It is clear from the said provisions that a suit abates by operation of the law when no substitution is made within one year on the death of a Defendant. However, Order 24 Rule 7(2) of the Civil Procedure Rules gives the court discretion to revive an abated suit if there is sufficient proof that the applicant was prevented by any sufficient cause from continuing with the suit.
11.In the instant case, the case the Applicant has explained that her father died in 2017 in Mombasa and they obtained a grant of letters of administration in 2019. Before she could apply for substitution, the suit was marked as having abated without her knowledge. She has explained that part of the delay was occasioned by the Covid-19 Pandemic. I take judicial notice that in 2020 and part of 2021 the operations of the court slowed down due to the Covid-19 pandemic and therefore the delay is not inordinate.
12.In the circumstances, I find merit in the application and I grant it and make the following orders: