[2018] KEELC 1696 (KLR)
The court found that the applicant, Virginia W. Njoroge, had provided sufficient evidence of the death of the 3rd defendant and her capacity as administrator of the deceased's estate, as evidenced by the grant of letters of administration and the confirmed grant. There was no opposition to her application, and the...
Source-derived case information.
- Citation
- [2018] KEELC 1696 (KLR)
- Parties
- Plaintiff: Charles Kamau Karanja; Defendant: District Land Surveyor, Nakuru District; Defendant: Land Registrar, Nakuru; Defendant: Ayub Njoroge Wainaina; Applicant: Virginia W. Njoroge
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 583 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution and Revival of Suit
- Outcome
- Application for substitution and revival of suit allowed.
- Legal Topics
- Substitution of Parties, Revival of Abated Suit, Land Disputes, Boundary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Kamau Karanja
Plaintiff
District Land Surveyor, Nakuru District
Defendant
Land Registrar, Nakuru
Defendant
Ayub Njoroge Wainaina
Defendant
Virginia W. Njoroge
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution and Revival of Suit
Legal Issues
- 1 Whether the suit against the deceased 3rd defendant should be revived after abatement.
- 2 Whether Virginia W. Njoroge should be substituted as the 3rd defendant in place of the deceased Ayub Njoroge Wainaina.
Ratio Decidendi
The court found that the applicant, Virginia W. Njoroge, had provided sufficient evidence of the death of the 3rd defendant and her capacity as administrator of the deceased's estate, as evidenced by the grant of letters of administration and the confirmed grant. There was no opposition to her application, and the court exercised its discretion to allow the revival of the suit and substitution of the deceased 3rd defendant with the applicant, notwithstanding the delay in filing the application. The court was satisfied that the requirements under Order 24 of the Civil Procedure Rules had been met, and thus granted the orders sought.
Court Disposition
Application for substitution and revival of suit allowed.
Orders
- The suit against the 3rd defendant is revived.
- Virginia W. Njoroge is substituted as the 3rd defendant in place of the deceased Ayub Njoroge Wainaina.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 583 OF 2013
CHARLES KAMAU KARANJA...........................................PLAINTIFF
VERSUS
THE DISTRICT LAND SURVEYOR
NAKURU DISTRICT....................................................1ST DEFENDANT
THE LAND REGISTRAR, NAKURU........................2ND DEFENDANT
AYUB NJOROGE WAINAINA ...............................3RD DEFENDANT
AND
VIRGINIA W. NJOROGE..................................................APPLICANT
RULING
(Application for substitution of a deceased party; application allowed).
1. The application before me is that dated 29 June 2017 filed by one Virginia W. Njoroge, who wishes to be substituted for Ayub Njoroge Wainaina, the 3rd defendant, who is said to have died on 21 July 2014. The application also seeks the revival of the suit for the reason that it has abated against the 3rd defendant.
2. The suit itself was commenced by way of a plaint which was filed on 6 November 2013. In the suit, the plaintiff sued three defendants, the 1st and 2nd defendants being the District Land Surveyor of Nakuru District and the District Land Registrar, respectively, and the 3rd defendant being Ayub Njoroge Wainaina. It was pleaded that in the year 2000, the late Ayub, filed a boundary dispute before the Bahati Land Disputes Tribunal, which made an award in his favour. The plaintiff then filed an appeal, being HCCA No. 41 of 2001, which is said to be still pending. It is averred that despite this, the 3rd defendant has been trespassing into the plaintiff's land by marking new boundaries. In the suit, the plaintiff has sought orders to have the defendants restrained from interfering with the plaintiff's land parcel Bahati/Bahati Block 1/395.
3. I have gone through the application. I have seen a Certificate of Death showing that Ayub Njoroge Wainaina died on 21 July 2014. I have also seen a Certificate of Grant of Letters of Administration issued to the applicant on 25 October 2015, and a confirmed grant issued on 30 September 2016. I have nothing before me which contests the capacity of the applicant. Although the applicant has not given me good reason as to why this application is being filed about two years after she received the grant of letters of administration, in my discretion, I will allow the revival of the abated suit. I therefore order that the deceased 3rd defendant be substituted with the applicant.
4. I will however make no orders as to costs.
5. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 20th day of September 2018.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of: -
Mr. Katithi holding brief for Mr. Gakinya for the plaintiff.
Mr. Simiyu holding brief for Ms. Njeri Njagua for the applicant/3rd defendant.
1st and 2nd defendants: Absent.
Court Assistant: Nelima.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU