[2006] KEHC 101 (KLR)
The court held that the right to utilize the Rice Holding survives the death of the licensee by virtue of the Irrigation Act and its regulations. The Civil Procedure Rules require that a legal representative be substituted within one year of death to prevent abatement of the suit. In this case, the application for...
Source-derived case information.
- Citation
- [2006] KEHC 101 (KLR)
- Parties
- Appellant: Dishon Karuga Mburia; Respondent: Kathungu Njoka
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 39 of 2003
- Procedural Posture
- Civil Appeal / Interlocutory Application for Substitution Due to Death of Respondent
- Outcome
- Application adjourned to enable filing of grant of representation.
- Legal Topics
- Substitution of Parties, Abatement of Suit, Succession of Licence, Legal Representative, Rice Holding Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dishon Karuga Mburia
Appellant
Kathungu Njoka
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Substitution Due to Death of Respondent
Legal Issues
- 1 Whether the right to utilize a Rice Holding under a licence survives the death of the licensee.
- 2 Whether there is a personal successor with a grant of representation to be substituted in place of the deceased respondent.
- 3 Whether the suit has abated due to lapse of time since the respondent's death.
Ratio Decidendi
The court held that the right to utilize the Rice Holding survives the death of the licensee by virtue of the Irrigation Act and its regulations. The Civil Procedure Rules require that a legal representative be substituted within one year of death to prevent abatement of the suit. In this case, the application for substitution was made within the prescribed period, so the suit had not abated. However, the widow, though entitled to represent the deceased, had not yet obtained a grant of representation. The court therefore adjourned the application to allow time for the grant to be obtained, as only a legal representative with such a grant can be properly substituted in the appeal.
Court Disposition
Application adjourned to enable filing of grant of representation.
Orders
- Application for substitution adjourned.
- Applicant to obtain and file a grant of representation.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
CIVIL APPEAL 39 of 03
DISHON KARUGA MBURIA ………...…………………APPELLANT
VERSUS
KATHUNGU NJOKA…………………………………RESPONDENT
RULING
The application dated 18. 8.2005 seeks order to appoint Hellen Wangari Kathungu and to substitute her for her husband, Kathungu Njoka who is now deceased to take up the appeal.
The death occurred on 9/9/2004 and this application was filed just before the expiration of the 12 months period provided under order 23 civil procedure Rules. It is admitted that at the time of death the deceased held a licence to utilize a Rice Holding by National irrigation board. The Rice Holding is now utilized by the children of deceased because the widow says that she is too old to work. The issue is whether or not there is a personal successor with a grant of representation to be substituted in place of deceased. Also does the right to work on Rice Holding Estate survive the death of licensees?.
The Irrigation Act Cap. 347 and regulations made therein (regulation 7) provides that the licensee may at any time nominate a successor in case of death. I find the license survives the deceased by virtue of the Act.
On the issue of abatement of suit Civil Procedure Rules Order 23 Rule 4 provides that where a suit survives death the legal representative of deceased shall be made a party. In the present case the appeal in existence can be finalized by a legal representative of deceased. It is not clear if the widow being in priority in taking a grant has done so. However she is the one entitled and there is no reason why she should not take a grant limited or otherwise to represent her husband in this appeal.
Rule 4 (3) Order 23 CPC is clear as to when time begins to run namely where no application is made within one year. In this case the application was made within one year and therefore the suit has not abated. It is not clear if the widow has a grant of representation yet.
I adjourn the application to enable a grant of representation to be filed.
Mention on 15/5/2006.
J. N. KHAMINWA
JUDGE
Notice to Applicant.
J.N. KHAMINWA
JUDGE