[2016] KEHC 2844 (KLR)
The court found that the applicant, as the widow and legal representative of the deceased plaintiff, had obtained letters of administration ad litem and was therefore entitled to be substituted as plaintiff. The cause of action survived the death of the original plaintiff, and no prejudice would be occasioned to the...
Source-derived case information.
- Citation
- [2016] KEHC 2844 (KLR)
- Parties
- Plaintiff: Col (Rtd) Dr. Henry Muthee Kathurima; Applicant: Sarah Mwaka Kathurima; Defendant: County Government of Meru
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 79 of 2014
- Procedural Posture
- Miscellaneous Application / Application for Substitution of Deceased Plaintiff
- Outcome
- Application allowed; applicant substituted as plaintiff.
- Judges
- FM Njoroge
- Legal Topics
- Substitution of Parties, Survival of Cause of Action, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Col (Rtd) Dr. Henry Muthee Kathurima
Plaintiff
Sarah Mwaka Kathurima
Applicant
County Government of Meru
Defendant
Procedural Posture
Miscellaneous Application / Application for Substitution of Deceased Plaintiff
Legal Issues
- 1 Whether the applicant should be substituted as plaintiff in place of the deceased.
- 2 Whether the cause of action survives the death of the original plaintiff.
- 3 Whether the applicant has legal standing as administrator ad litem.
Ratio Decidendi
The court found that the applicant, as the widow and legal representative of the deceased plaintiff, had obtained letters of administration ad litem and was therefore entitled to be substituted as plaintiff. The cause of action survived the death of the original plaintiff, and no prejudice would be occasioned to the defendant by allowing the substitution. The application was facilitative and meritorious, warranting the grant of the orders sought.
Court Disposition
Application allowed; applicant substituted as plaintiff.
Orders
- Sarah Mwaka Kathurima is substituted as plaintiff in place of the deceased Col (Rtd) Dr. Henry Muthee Kathurima.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ENVIROMMENT AND LAND SUIT NO. 79 OF 2014
COL (RTD) DR. HENRY MUTHEE KATHURIMA....................................PLAINTIFF
VERSUS
COUNTY GOVERNMENT OF MERU....................................................DEFENDANT
R U L I N G
1. This Application is filed Under Order 24 Rule 3(1) of the Civil Procedure Rules. It seeks the following orders:
1. THAT this application be certified urgent and that it be heard urgently.
2. THAT the Honourable Court be pleased to issue an order, substituting the deceased plaintiff with SARAH MWAKA KATHURIMA who is the legal representative of the estate of the Plaintiff.
3. THAT costs be in the cause.
2. The Application is buttressed by the Affidavit of SARAH MWAKA KATHURIMA and has the following grounds:
1. The Plaintiff died on 23/05/2016 while this suit was pending for hearing.
2. The cause of action in this suit survives the death of the Plaintiff.
3. The Applicant has been granted letters of administration Ad Litem for purposes of being substituted in this matter in the place of the deceased plaintiff.
4. THAT no prejudice shall be occasioned upon the defendant if the application is allowed
3. At the exparte stage on 07/09/2016, Mr Mwririgi, the applicant's Advocate told the Court that the Applicant who is the wife of the deceased Plaintiff wanted to be substituted with her husband to allow her prosecute this suit expeditiously so that the estate of her husband was protected.
4. As this Application is facilitative, I find that the orders sought are meritorious and can be granted at this stage.
5. I grant prayer 2.
6. It is so ordered.
DELIVERED IN OPEN COURT AT MERU THIS 7TH DAY OF SEPTEMBER, 2016 IN THE PRESENCE OF:-
CC: Lilian/Daniel
Mwirigi for the Applicant
P .M. NJOROGE
JUDGE