[2016] KEELC 72 (KLR)
The court found that the application for substitution was meritorious because the defendant had died, and the applicant, as the eldest son and holder of a grant of administration ad litem, was entitled to be substituted as defendant. The court further noted that the suit had not abated and that the substitution...
Source-derived case information.
- Citation
- [2016] KEELC 72 (KLR)
- Parties
- Plaintiff: Andrew Laikaibu Kathuku Alias Nginga M'Kaibi; Defendant: Samwel Kaaria M'Kaibi; Applicant: Jacob Miriti Kaaria
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Originating Summons Summons157 of 2013
- Procedural Posture
- Originating Summons / Ruling on Substitution Application
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Substitution of Parties, Death of Defendant, Grant of Administration, Abatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Andrew Laikaibu Kathuku Alias Nginga M'Kaibi
Plaintiff
Samwel Kaaria M'Kaibi
Defendant
Jacob Miriti Kaaria
Applicant
Procedural Posture
Originating Summons / Ruling on Substitution Application
Legal Issues
- 1 Whether the applicant should be substituted as defendant following the death of the original defendant.
- 2 Whether the suit has abated against the deceased defendant.
- 3 Whether the applicant has legal standing as administrator ad litem.
Ratio Decidendi
The court found that the application for substitution was meritorious because the defendant had died, and the applicant, as the eldest son and holder of a grant of administration ad litem, was entitled to be substituted as defendant. The court further noted that the suit had not abated and that the substitution would facilitate the expeditious hearing and determination of the matter. There was no opposition to the application, and the court exercised its discretion under Order 24 of the Civil Procedure Rules to allow the substitution, ensuring the suit could proceed on its merits.
Court Disposition
application allowed
Orders
- The application for substitution is allowed.
- Jacob Miriti Kaaria is substituted as defendant in place of the deceased Samwel Kaaria M'Kaibi.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ORIGINATING SUMMONS NO. 157 OF 2013
ANDREW LAIKAIBU KATHUKU Alias
NGINGA M'KAIBI ….......................................................................PLAINTIFF/RESPONDENT
VERSUS
SAMWEL KAARIA M'KAIBI.....................................................DEFENDANT/RESPONDENT
JACOB MIRITI KAARIA..........................................APPLICANT/PROPOSED DEFENDANT
R U L I N G
1. This application states that it has been brought to Court under Order 24 Rules 4 and 5 and Order 51 Rule 1 of the Civil Procedure Rules, 2010.
2. The application seeks the following orders:-
(1) THAT this application be certified urgent and be heard on priority basis.
(2) THAT this Honourable Court be pleased to issue an order substituting the Defendant who is deceased with the Applicant/proposed Defendant one JACOB MIRITI KAARIA for purposes of proceeding with the main suit herein.
(3) THAT the costs of this Application be in the cause.
3. The application is supported by the affidavit of the Applicant JACOB MIRITI KAARIA sworn on 13th August, 2016 and has the following grounds:-
(a) THATthe defendant died on 19th December, 2015.
(b) THATthe proposed Defendant is the eldest son of the deceased SAMWEL KAARIA M'KAIBI .
4. On 21/11/2016, Advocate Nyauchi, representing the applicant told the Court that the application is merely facilitative to substitute the defendant with his son who has a grant of administration ad litem.
5. I note that the suit has not abated as against the defendant.
6. I agree that the application seeks to facilitate the expeditious hearing and determination of this suit.
7. The application is found meritorious.
8. In the circumstances, the application is allowed.
9. Costs shall be in the cause.
10. It is so ordered.
DELIVERED IN OPEN COURT AT MERU THIS 23RD DAY OF NOVEMBER, 2016 IN THE PRESENCE:-
C:A James
Nyauchi for the Plaintiff
Mutura h/b Kimathi Kiara for the Defendant
P.M. NJOROGE
JUDGE