[2015] KEHC 6553 (KLR)
The court found that the plaintiff had not demonstrated capacity to sue as he had not been appointed administrator of the estate of the deceased registered owner of the suit properties. Furthermore, the 1st defendant was reportedly deceased and no personal representative had been joined to the suit. The court held...
Source-derived case information.
- Citation
- [2015] KEHC 6553 (KLR)
- Parties
- Plaintiff: Alexander M. Odongo; Defendant: Clement Mukoya; Defendant: Imelda Were
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 191 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Suit
- Outcome
- suit struck out with costs to the 2nd defendant
- Legal Topics
- Capacity to Sue, Striking Out Pleadings, Estate Administration, Suits Against Deceased Persons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alexander M. Odongo
Plaintiff
Clement Mukoya
Defendant
Imelda Were
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the plaintiff had legal capacity to institute the suit over the suit properties.
- 2 Whether the suit could be sustained against the 1st defendant who is reportedly deceased.
- 3 Whether the plaint disclosed a reasonable cause of action.
Ratio Decidendi
The court found that the plaintiff had not demonstrated capacity to sue as he had not been appointed administrator of the estate of the deceased registered owner of the suit properties. Furthermore, the 1st defendant was reportedly deceased and no personal representative had been joined to the suit. The court held that it is trite law that a suit cannot be commenced or sustained against a dead person, but only against the estate or personal representative of such deceased person. The plaint did not disclose a reasonable cause of action and was therefore fatally defective. Consequently, the suit was struck out with costs to the 2nd defendant.
Court Disposition
suit struck out with costs to the 2nd defendant
Orders
- The suit is struck out with costs to the 2nd defendant.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUSIA.
ELC. NO. 191 OF 2014.
ALEXANDER M. ODONGO…………..……………………. PLAINTIFF
=VERSUS=
CLEMENT MUKOYA
IMELDA WERE………………………………………...DEFENDANTS.
R U L I N G.
IMELDA WERE, who is the 2nd Defendant, through M/S. J. V. JUMA & CO., Advocatesby the notice of motion dated 17th November, 2014 moved the court under Order 2 Rule 15 (a) of the Civil Procedure Rules to strike out the Plaintiff’s suit for failure to disclose a cause of action. The application is based on the following three grounds.;-
‘’ (i) The Plaintiff has no capacity to sue in the circumstances.
(ii) The 1st Defendant is dead.
(iii) The whole suit is totally defective, and incompetent.’’
The application was served on Alexander Mudibo Odongo, the Plaintiff herein, through the postal address he gave in paragraph 1 of the plaint dated 10th October, 2014 by registered post service. The Plaintiff did not attend court during the hearing. I have considered the grounds on the application and the submission by 2nd Defendant’s counsel and find as follows:-
1. That applications under Order 2 rule 15 (1) (a) of the Civil Procedure Rules do not require evidence to accompany them. As such no supporting affidavit was filed.
2. That the pleadings in the plaint field by the Plaintiff, and dated 10th October, 2014 suggests that the suit properties were registered in the names of one Odongo Ong’ombe who died in October, 1970.
3. That the suit parcels were registered on 27th June, 1973 which was over two years after the death of the said Odongo Ong’ombe.
4. That though the Plaintiff alleged that he was a son of the said Odongo Ongombe, he has not averred in his pleadings that he had been appointed the administrator of the estate of the said Odongo Ong’ombe.
5. That the Plaintiff has not rebutted the 2nd Defendant averment that the 1st Defendant is deceased. It is trite law that no suit can be commenced and. or sustained against a dead person but only against such deceased person’s estate or personal representative.
6. That for reasons that the Plaintiff do not have capacity to sue over the suit properties and that the 1st Defendant is reportedly deceased and no action has been taken to enjoin his personal representative in his place, the suit is struck out with costs to the 2nd Defendant.
It is so ordered.
S.M. KIBUNJA,
JUDGE.
DATED AND DELIVERED ON …24TH .....DAY OF FEBRUARY, 2015.
IN THE PRESENCE OF……..N/A ……………PLAINTIFF
…….N/A…………….1ST DEFENDANT
……..N/A…………..2ND DEFENDANT.
MR.J.V. JUMA ADVOCATE FOR 2ND DEFENDANT.
JUDGE.