[2018] KEELC 2901 (KLR)
The court found that although the application for substitution was filed more than two years after the death of the 1st defendant, and thus the suit had technically abated, the court has discretion to revive an abated suit. The applicant provided evidence of his appointment as administrator of the deceased's estate...
Source-derived case information.
- Citation
- [2018] KEELC 2901 (KLR)
- Parties
- Plaintiff: Douglas Kabuga alias Thira Kabuga; Defendant: Charity Muthoni Kabuga; Defendant: District Land Registrar Nakuru; Defendant: Attorney General; Applicant: Henry Njogu Kabuga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 617 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Deceased Defendant and Revival of Abated Suit
- Outcome
- Application for substitution and revival of suit allowed.
- Legal Topics
- Substitution of Parties, Abatement of Suit, Revival of Suit, Land Title Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Douglas Kabuga alias Thira Kabuga
Plaintiff
Charity Muthoni Kabuga
Defendant
District Land Registrar Nakuru
Defendant
Attorney General
Defendant
Henry Njogu Kabuga
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Deceased Defendant and Revival of Abated Suit
Legal Issues
- 1 Whether the applicant should be substituted for the deceased 1st defendant in the suit.
- 2 Whether the court should revive the suit which had abated due to the death of the 1st defendant.
- 3 Whether the applicant, as legal representative, can continue the suit on behalf of the deceased's estate.
Ratio Decidendi
The court found that although the application for substitution was filed more than two years after the death of the 1st defendant, and thus the suit had technically abated, the court has discretion to revive an abated suit. The applicant provided evidence of his appointment as administrator of the deceased's estate and the death certificate. The court exercised its discretion to revive the suit and allow substitution, noting that the application was not opposed and that it was in the interests of justice to allow the parties to ventilate their positions regarding the suit property. The court therefore allowed the application for substitution and revival of the suit, permitting the...
Court Disposition
Application for substitution and revival of suit allowed.
Orders
- The applicant, Henry Njogu Kabuga, is substituted for the deceased 1st defendant, Charity Muthoni Kabuga.
- The suit, which had abated, is revived and shall proceed.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO.617 OF 2013
DOUGLAS KABUGA ALIAS THIRA KABUGA............PLAINTIFF
VERSUS
CHARITY MUTHONI KABUGA...........................1ST DEFENDANT
DISTRICT LAND REGISTRAR NAKURU...........2ND DEFENDANT
ATTORNEY GENERAL...........................................3RD DEFENDANT
RULING
(Application for substitution of a deceased defendant; application not opposed; application allowed)
1. The application before me is that dated 2 October 2017 filed by one Henry Njogu Kabuga. It is an application said to be brought pursuant to the provisions of Order 24 Rule 4 (1) and (2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, Cap 21, Laws of Kenya. The substantive order sought in the application is for the substitution of the applicant for the 1st defendant who is said to be deceased.
2. The suit itself was commenced by way of a plaint which was filed on 3 December 2013. In the plaint, the plaintiff has pleaded that he is the lawful proprietor of the land parcel Bahati/Kabatini Block 1/714 which land was previously held by Ndeffo Limited. It is pleaded that while the plaintiff was a minor, his mother purchased a share in his name in the year 1974 which entitled the plaintiff to the suit land. It is pleaded that on 27 November 1998, under unclear circumstances, the 1st defendant, Charity Muthoni Kabuga, got registered as proprietor of the suit land instead of the plaintiff and it is the position of the plaintiff that this was procured through fraud. In the suit, the plaintiff has sought to be declared owner of the suit land and for cancellation of the 1st defendant's title. The 1st defendant filed defence where she refuted the claims of the plaintiff and asserted that she has good title to the suit land.
3. Through this application, it has emerged that the 1st defendant is now deceased. The applicant has annexed a copy of a Certificate of Death which shows that the 1st defendant died on 4 August 2015. The applicant has also annexed a copy of a Limited Grant of Letters of Administration Ad Litem, which reveals that the applicant was appointed on 24 October 2016 as administrator of the estate of the 1st defendant, limited for purposes of pursuing the present suit.
4. Order 24 Rule 4, upon which this application is premised states as follows :-
Procedure in case of death of one of several defendants or of sole defendant
(1) Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant.
5. It will be seen from the above that where the cause of action survives the death of the defendant, a person who is legal representative of the deceased, can apply to be made a party to the suit. The application is however supposed to be made within one year, as noted in Order 24 Rule 3 above, or else the suit will abate. I note that the deceased died on 4 August 2015, and this application was filed on 2 October 2017, more than 2 years after the demise of the 1st defendant. Technically, this suit has thus abated but the court has discretion to revive an abated suit. Although I was not provided with any reasons why the application was filed more than one year after the death of the 1st defendant, in my discretion, I will revive the suit though abated, so that the parties can have opportunity to ventilate their respective positions with regard to the suit property.
6. I allow the application for substitution and also revive the otherwise abated suit. I order that the applicant be substituted for the deceased 1st defendant and allow him to continue the suit on behalf of the estate of the deceased 1st defendant.
7. The application was not opposed and I therefore make no orders as to costs.
8. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 2nd day of May 2018.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of: -
Mr. Kipkenei holding brief for Mrs Ndeda for the plaintiff.
Court Assistant: Nelima Janepher.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU