[2019] KEELC 4234 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC NO. 306 OF 2015

1. ADAM SAID JUMBE

2. MERCELENE KISHAGA BULUMA............................PLAINTIFFS

VERSUS

PRESITONE MWAKIO JUMBE......................................DEFENDANT

RULING

1. Before me for determination is a preliminary objection raised by the defendant to the 2nd plaintiff’s notice of Motion dated 6th February, 2018. The said preliminary objection is worded as follows:

“That in the absence of a grant of representation the 2nd plaintiff has no locus standi to litigate the suit herein on behalf of the estate of the deceased Adam Said Jumbe the 1st Plaintiff.”

2. In the application dated 6th February, 2018, the 2nd Plaintiff seeks leave to amend the plaint so as to delete the 1st plaintiff who is deceased. The 1st plainfiff is said to have died on 26/10/13.

3. The preliminary objection was canvassed by way of written submissions. The defendant filed his submissions on 11th February 2019 in which it is submitted that whereas the suit survives the 1st Plaintiff’s death and whereas the 2nd Plaintiff is at liberty to prosecute the same to its conclusion, the 2nd Plaintiff cannot plead on behalf of the deceased Plaintiff in the absence of letters of administration.

4. The 2nd Plaintiff filed her submissions on 11th January 2019 in which she submits inter alia, that in the application dated 6th February, 2018, the 2nd Plaintiff is only seeking to be allowed to continue with the suit as the cause of action survives the death of the 1st Plaintiff. The 2nd Plaintiff further submits that he has no intention whatsoever to litigate the suit on behalf of the deceased plaintiff.

5. I have considered the Notice of preliminary objection, filed submissions and the authorities cited. In the plaint, the plaintiffs sought inter alia, a declaration that all that piece or parcel of land known as PLOT NO.CHAWIA/WUSI-KAYA/240 is ancestral land belonging to the plaintiffs and the defendant and that the defendant holds the same in trust for the plaintiffs. The plaintiffs further seek a rectification of the register to include the names of the plaintiffs as owners in common with the defendants.

6. It is not in dispute that the 1st Plaintiff is now deceased. Order 24 Rule 2 of the Civil Procedure Rules provides the procedure where one of several plaintiffs dies and right to sue survives. It states as follows:

2. where there are more plaintiffs or defendants than one, and any one of them dies, and where the cause of action survives or continues to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants

7. It is clear from the above provision that where there are more plaintiffs than one and any one dies, as in the instant case, and the cause of action survives or continues to the surviving plaintiff, all that the court is required is to cause an entry to be made on the record and the suit shall proceed at the instance of the surviving plaintiff. In his submissions, the defendant admits that the cause of action herein survives the 1st Plaintiff’s death and that the 2nd plaintiff is at liberty to prosecute the same to its natural conclusion.

8. Accordingly, I find and hold that the Preliminary Objection lacks merit and the same is dismissed with costs.

DATED, SIGNED and DELIVERED at MOMBASA this 18th day of March 2019.

C.K. YANO

JUDGE

IN THE PRESENCE OF:

Mrs. Kabole for Plaintiff/Respondent

No appearance for defendant

Yumna Court Assistant

C.K. YANO

JUDGE