1. I have considered the Notice of Motion dated 23rd September, 2024 together with the affidavit filed in support on even date and the replying affidavit sworn in opposite to the same, the grounds of opposition dated 21 February 2025, and the applicable law.
2. The application seeks orders for substitution of the deceased Plaintiff with the Administrator of the Estate, leave to reinstate the suit, and leave to amend the Plaint.
3. I note from the outset that the Application is brought after the suit has already abated by operation of law.
4. Order 24 Rule 3(2) of the Civil Procedure Rules provides as follows:
“Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff is concerned, and on application by the defendant, the court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.”
5. In this case, the Plaintiff is stated to have died on 13 December, 2022 as averred in the Supporting Affidavit. The present application was therefore filed one year and nine months after the death of the Plaintiff.
6. No application for substitution was brought within the one-year period prescribed by the above rule. Accordingly, as a matter of fact, the present suit abated by operation of law.
7. It is well settled that substitution cannot be undertaken in an abated suit unless the suit is first revived. In Gachuhi Muthui v Mary Wanjiru Njuguna [2006] eKLR, the Court of Appeal stated:
“Once a suit has abated, it cannot be revived by substitution unless an application for revival is made and granted. Substitution cannot be done in a vacuum where the suit has abated and remains so.”
8. An Applicant seeking revival of a suit ought to lay out a basis to justify re in statement. This was not done. I say so because the Application for both substitution and re instatement was made after a prolonged delay, being almost two years after the Plaintiff passed away, and 9 months after suit abated. Moreover, the Applicant has not offered this court a sufficient explanation in relation to the grounds for re instatement. I therefore find that the delay is both prolonged and inexcusable because the reasons provided are insufficient to justify the orders sought.
9. I also take note of the respondent submission that the Applicant has not provided the court with evidence to show that it has been granted letters of administration ad litem. There is therefore no evidence to show that the deponent has the legal authority to act on behalf of the estate of the deceased. The respondent submitted that deponent lacks the locus to address this court and that the application is fatally defective. This allegation was not rebutted by the Applicant, and therefore stands uncontroverted.
10. Finally, on 20th January 2025, this Court directed the parties to file and exchange submissions in relation to the present application within specific timelines. The Applicant has not complied with those directions, and no submissions have been filed to date. No reasonable explanation has been offered by the Applicant for its default.
11. In view of the foregoing, I am satisfied that the Application is without merit. The same is accordingly dismissed with costs.
2. The application seeks orders for substitution of the deceased Plaintiff with the Administrator of the Estate, leave to reinstate the suit, and leave to amend the Plaint.
3. I note from the outset that the Application is brought after the suit has already abated by operation of law.
4. Order 24 Rule 3(2) of the Civil Procedure Rules provides as follows:
“Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff is concerned, and on application by the defendant, the court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.”
5. In this case, the Plaintiff is stated to have died on 13 December, 2022 as averred in the Supporting Affidavit. The present application was therefore filed one year and nine months after the death of the Plaintiff.
6. No application for substitution was brought within the one-year period prescribed by the above rule. Accordingly, as a matter of fact, the present suit abated by operation of law.
7. It is well settled that substitution cannot be undertaken in an abated suit unless the suit is first revived. In Gachuhi Muthui v Mary Wanjiru Njuguna [2006] eKLR, the Court of Appeal stated:
“Once a suit has abated, it cannot be revived by substitution unless an application for revival is made and granted. Substitution cannot be done in a vacuum where the suit has abated and remains so.”
8. An Applicant seeking revival of a suit ought to lay out a basis to justify re in statement. This was not done. I say so because the Application for both substitution and re instatement was made after a prolonged delay, being almost two years after the Plaintiff passed away, and 9 months after suit abated. Moreover, the Applicant has not offered this court a sufficient explanation in relation to the grounds for re instatement. I therefore find that the delay is both prolonged and inexcusable because the reasons provided are insufficient to justify the orders sought.
9. I also take note of the respondent submission that the Applicant has not provided the court with evidence to show that it has been granted letters of administration ad litem. There is therefore no evidence to show that the deponent has the legal authority to act on behalf of the estate of the deceased. The respondent submitted that deponent lacks the locus to address this court and that the application is fatally defective. This allegation was not rebutted by the Applicant, and therefore stands uncontroverted.
10. Finally, on 20th January 2025, this Court directed the parties to file and exchange submissions in relation to the present application within specific timelines. The Applicant has not complied with those directions, and no submissions have been filed to date. No reasonable explanation has been offered by the Applicant for its default.
11. In view of the foregoing, I am satisfied that the Application is without merit. The same is accordingly dismissed with costs.