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Pauline Kitti Nyale v. Principal Magistrate's Court, Kilifi & Juma Ngala Mwambengu

(2016) JELR 93982 (CA)

Court of Appeal  •  Civil Appeal 25 of 2015  •  26 Feb 2016  •  Kenya

Coram
Milton Stephen Asike Makhandia, William Ouko, Kathurima M'inoti

Judgement

JUDGMENT OF THE COURT

The appellant believed that the suit brought by the respondent in the Kilifi Senior Resident Magistrate's Court, Civil Case No. 21 of 2001 had abated following the death of the original defendant (the deceased). Pursuant to that belief and based on the provisions of Order 24 Rule 4 of the Civil Procedure Rules, the appellant filed a notice of motion asking the court to confirm that the suit had indeed abated. She deponed in the affidavit in supporting of the motion that during the pendency of the suit, the deceased passed away on 17th September, 2009; that it was not until 10th June, 2013 that the appellant was substituted in place of the deceased; that without an application to cause the legal representative of the deceased to be joined in the pending proceedings, the suit against the deceased abated on 17th September, 2010, one year after his death; and that joining the appellant as the deceased's personal representative to the suit, did not revive the abated su…

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