[2020] KEELC 3301 (KLR)
The court found that the applicant, having obtained letters of administration ad litem, is entitled to be substituted as plaintiff in place of the deceased. The court further held that leave to amend the plaint should be granted to reflect this substitution, as failure to do so would result in abatement of the suit...
Source-derived case information.
- Citation
- [2020] KEELC 3301 (KLR)
- Parties
- Plaintiff: Chabari Mungania; Defendant: Felix Murithi Kirai; Defendant: Guaranty Trusts Bank Ltd; Applicant: Francis Kiunga Chabari
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 51 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Substitution and Amendment Application
- Outcome
- Application for substitution and amendment to be heard on merits; directions given.
- Legal Topics
- Substitution of Parties, Amendment of Pleadings, Letters of Administration, Abatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chabari Mungania
Plaintiff
Felix Murithi Kirai
Defendant
Guaranty Trusts Bank Ltd
Defendant
Francis Kiunga Chabari
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Substitution and Amendment Application
Legal Issues
- 1 Whether the applicant should be substituted as plaintiff following the death of the original plaintiff.
- 2 Whether leave should be granted to amend the plaint to reflect the substitution.
- 3 Whether the suit would abate if substitution is not allowed.
Ratio Decidendi
The court found that the applicant, having obtained letters of administration ad litem, is entitled to be substituted as plaintiff in place of the deceased. The court further held that leave to amend the plaint should be granted to reflect this substitution, as failure to do so would result in abatement of the suit to the detriment of the deceased's estate. The court noted that there was no evidence of prejudice to the defendants and that the application was properly supported by affidavit and relevant documentation. Accordingly, the court directed that the application be heard on the merits before the presiding judge at Meru.
Court Disposition
Application for substitution and amendment to be heard on merits; directions given.
Orders
- The application is to be heard by Honourable Lady Justice Lucy Mbugua, ELC Judge, at Meru on 24th March, 2020.
- Delivered in open court at Chuka on 11th March, 2020.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
MERU ELC CASE NO. 51 OF 2017
CHABARI MUNGANIA...............................................................................................PLAINTIFF
VERSUS
FELIX MURITHI KIRAI.................................................................................... 1ST DEFENDANT
GUARANTY TRUSTS BANK LTD....................................................................2ND DEFENDANT
AND
FRANCIS KIURNGA CHABARI.......INTENDED SUBSTITUTED PLAINTIFF/APPLICANT
RULING
1. This application is dated 26th February, 2020 and was brought to court under Certificate of urgency. It seeks orders:-
1. That this application be certified as urgent and the same be heard as a matter of priority.
2. That this honourable court be pleased to substitute the plaintiff who is now deceased with Francis Kiunga Chabari.
3. That this honourable court be pleased to grant leave to the applicant to amend the plaint substituting the plaintiff who is now deceased with the applicant Francis Kiunga Chabari.
4. That costs of this application be provided for.
2. The application is supported by the applicant’s affidavit and has the following grounds:
i. That the plaintiff instituted this suit vide a plaint dated 1. 2.2019.
ii. That the plaintiff passed away on 19. 4.2019 when this suit was pending.
iii. That the applicant has obtained letters of administration ad litem dated 4. 2.2020.
iv. That the applicant now seeks leave to be substituted in place of the plaintiff and amend the plaint by removing the plaintiff who is now deceased in this suit.
v. That the defendant /respondent will not be prejudiced by this application.
vi. That if the orders sought are declined the plaintiff’s suit will abate to the detriment of his estate.
3. At the exparte stage the applicant was not in court.
4. It is directed that the application be heard by the Honourable Lady Justice Lucy Mbugua, ELC Judge, at Meru on 24th March, 2020.
Delivered in open Court at Chuka this 11th day of March, 2020 in the presence of:
CA: Ndegwa
Parties not in court
P. M. NJOROGE,
JUDGE.