[2019] KEELC 3543 (KLR)
The court found that the application for revival of the suit and substitution of the deceased defendant with Edith Nafula Mukonambi and Habib Salim Ndamwe was merited. The applicant had obtained a limited grant of letters of administration, empowering the proposed substitutes to represent the estate of the deceased....
Source-derived case information.
- Citation
- [2019] KEELC 3543 (KLR)
- Parties
- Plaintiff: Aziz Ndamwe; Defendant: Miriam Anjao Ndamwe; Defendant: Salim Ndamwe; Respondent: Edith Nafula Mukonambi; Respondent: Habib Salim Ndamwe
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 54 of 1999
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Revival of Suit and Substitution of Parties
- Outcome
- Application allowed; suit revived and substitution of parties ordered.
- Judges
- FM Njoroge
- Legal Topics
- Revival of Suit, Substitution of Parties, Letters of Administration, Deceased Defendant, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aziz Ndamwe
Plaintiff
Miriam Anjao Ndamwe
Defendant
Salim Ndamwe
Defendant
Edith Nafula Mukonambi
Respondent
Habib Salim Ndamwe
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Revival of Suit and Substitution of Parties
Legal Issues
- 1 Whether the suit should be revived following the death of the defendants.
- 2 Whether Edith Nafula Mukonambi and Habib Salim Ndamwe should be substituted as defendants in place of the deceased.
- 3 Whether the application for revival and substitution is merited.
Ratio Decidendi
The court found that the application for revival of the suit and substitution of the deceased defendant with Edith Nafula Mukonambi and Habib Salim Ndamwe was merited. The applicant had obtained a limited grant of letters of administration, empowering the proposed substitutes to represent the estate of the deceased. The application was unopposed, and the court was satisfied that no prejudice would be occasioned to any party by granting the orders sought. Accordingly, the court exercised its discretion under the Civil Procedure Rules to revive the suit and substitute the deceased defendant, ensuring the matter could proceed to determination on its merits.
Court Disposition
Application allowed; suit revived and substitution of parties ordered.
Orders
- The suit is hereby revived.
- The deceased 2nd defendant, Salim Ndamwe, shall be substituted by Edith Nafula Mukonambi jointly with Habib Salim Ndamwe.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC NO. 54 OF 1999
AZIZ NDAMWE………......................................................PLAINTIFF
VERSUS
MIRIAM ANJAO NDAMWE…………….………1ST DEFENDANT
SALIM NDAMWE………………………….....…..2ND DEFENDANT
AND
EDITH NAFULA MUKONAMBI………………1ST RESPONDENT
HABIB SALIM NDAMWE……………….…….2ND RESPONDENT
RULING
1. The application dated 6th February, 2019 and filed in court on 15/2/2019 seeks orders that the deceased Salim Ndamwe be substituted by Edith Nafula Mukonambijointly withHabib Salim Ndamwe respectively; that the subject suit be revived and that costs be provided for.
2. The application is brought under provisions of Order 1 Rule 10 and 14, Order 24 Rule 4, 7 and Order 51 Rule 1 of the Civil Procedure Rules Cap 21 Laws of Kenya.
3. The application is supported by the sworn affidavit of the plaintiff dated 6/6/2019 and a supplementary affidavit also sworn by the plaintiff dated 15/3/2019. The grounds upon which the application is sought are that the all the defendants are deceased therefore the suit against the defendants need to be revived and there is need for substitution; that the applicant has applied for limited grant of letters of administration in favour of the said Edith Nafula MukonambiandHabib Salim Ndamwe;that the deceased died while defending the suit herein that the special grant gives the respondents powers to substitute the deceased defendants and that no prejudice shall be suffered by any party.
4. The plaintiff filed submissions on 4/4/2019. I have perused the application and the filed submissions
5. I am satisfied that the instant application, which is unopposed, has merit.
6. I therefore grant the application and issue the following orders:
(a) That this suit is hereby revived;
(b) That the deceased 2nd defendant, Salim Ndamwe, shall be substituted by Edith Nafula Mukonambi jointly with Habib Salim Ndamwe;
(c) That the costs of the application shall be in the cause.
Dated, signedanddeliveredatKitale on this 30th day of April, 2019.
MWANGI NJOROGE
JUDGE
30/4/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Bisonga holding brief for Barongo for respondent
N/A for plaintiff
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
30/4/2019