[2017] KEELC 3023 (KLR)
The court found that the applicant had provided sufficient evidence of the death of the original plaintiff and had obtained the necessary letters of administration ad litem limited to prosecuting the present suit. There being no opposition from the defendants, and the requirements of Order 24 Rule 3 of the Civil...
Source-derived case information.
- Citation
- [2017] KEELC 3023 (KLR)
- Parties
- Plaintiff: Daniel Kagundu Muthee; Applicant: Linus Njagi Muthee; Defendant: Peter Muhika Kamau; Defendant: George Ng'ang'a Mungai
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 298 of 2014
- Procedural Posture
- Miscellaneous Application / Application for Substitution of Deceased Plaintiff
- Outcome
- application allowed
- Judges
- DO Ohungo
- Legal Topics
- Substitution of Parties, Letters of Administration, Death of Litigant, Procedure on Death, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kagundu Muthee
Plaintiff
Linus Njagi Muthee
Applicant
Peter Muhika Kamau
Defendant
George Ng'ang'a Mungai
Defendant
Procedural Posture
Miscellaneous Application / Application for Substitution of Deceased Plaintiff
Legal Issues
- 1 Whether the applicant should be substituted as plaintiff following the death of the original plaintiff.
- 2 Whether the applicant has satisfied the requirements for substitution under Order 24 Rule 3 of the Civil Procedure Rules, 2010.
Ratio Decidendi
The court found that the applicant had provided sufficient evidence of the death of the original plaintiff and had obtained the necessary letters of administration ad litem limited to prosecuting the present suit. There being no opposition from the defendants, and the requirements of Order 24 Rule 3 of the Civil Procedure Rules, 2010 having been met, the court allowed the application for substitution. The applicant, Linus Njagi Muthee, was therefore substituted as plaintiff in place of the deceased, Daniel Kagundu Muthee, and directed to file and serve an amended plaint within fourteen days.
Court Disposition
application allowed
Orders
- Linus Njagi Muthee is substituted as plaintiff in place of Daniel Kagundu Muthee (deceased).
- The new plaintiff shall file and serve an amended plaint indicating his name as plaintiff within fourteen days from the date of this ruling.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
CASE No. 298 OF 2014
DANIEL KAGUNDU MUTHEE…………………………….PLAINTIFF
VERSUS
PETER MUHIKA KAMAU ….......………..………..1ST DEFENDANT
GEORGE NG'ANG'A MUNGAI…………………....2ND DEFENDANT
RULING
(Application for substitution of a deceased plaintiff; plaintiff passed away on 13th May 2016; On 23rd November 2016 applicant was granted letters of administration ad litem in respect of the deceased's estate; application allowed)
1. Before the court for determination is Notice of Motion dated 22nd February 2016 filed by LINUS NJAGI MUTHEE. He seeks the following orders:
a) THAT this honourable court be pleased to substitute LINUS NJAGI MUTHEE in place of the plaintiff DANIEL KAGUNDU MUTHEE.
b) THAT this honourable court be pleased to issue directions as to the hearing of the suit herein.
c) THAT the costs of this application be provided for.
2. The application is brought under Order 24 Rule 3 of the Civil Procedure Rules, 2010 among other provisions. It is supported by the affidavit of the applicant.
3. When the application come up for inter paste hearing the applicant satisfied the court that the application had been served. The defendant did not file any response to the application and did not also attend the inter parte hearing of the application.
4. The applicant deposed that the plaintiff passed away on 13th May 2016. He exhibited a death certificate in confirmation thereof. He further deposed that he was on 23rd November 2016 granted letters of administration ad litem in respect of the deceased's estate in Nakuru Probate and Administration Cause No. 319 of 2016. The said letters of administration were duly annexed to the supporting affidavit and are limited for the “purpose of filing a civil suit and pursuing and prosecuting Nakuru ELC No. 298 of 2014. ”
5. The applicant therefore prays that he be substituted as plaintiff in this suit to enable him prosecute it.
6. I have considered the application and counsel's submissions. I am satisfied from the annexed death certificate that the plaintiff passed away on 13th May 2016 and that the applicant duly obtained letters of administration empowering him to prosecute this suit.
7. In the circumstances, I allow the application. Linus Njagi Muthee is hereby substituted in place of Daniel Kagundu Muthee (deceased) as plaintiff. The new plaintiff to file and serve an amended plaint indicating his name as plaintiff within 14 (fourteen) days from the date of this ruling.
8. Costs in the cause.
Dated, signed and delivered in open court at Nakuru this 27th day of April 2017.
D. O. OHUNGO
JUDGE
In the presence of:
…..................................... for the applicant
…......................................for the defendant
Court Assistant: Gichaba