[2019] KEELC 2724 (KLR)
The court found that the applicant had produced a valid grant ad litem authorizing representation of the deceased plaintiff’s estate. The cause of action, being a claim for recovery of land allegedly transferred fraudulently, survives the death of the plaintiff. There was no opposition to the application, and the...
Source-derived case information.
- Citation
- [2019] KEELC 2724 (KLR)
- Parties
- Plaintiff: Ebrahim Athumani Mwangi; Defendant: Abdalla Tairara Godoro; Defendant: Herodho Sheikh Bin Sheikh
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 187 of 2014
- Procedural Posture
- Miscellaneous Application / Application for Substitution of Deceased Plaintiff
- Outcome
- application allowed
- Legal Topics
- Substitution of Parties, Survival of Cause of Action, Grant Ad Litem, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ebrahim Athumani Mwangi
Plaintiff
Abdalla Tairara Godoro
Defendant
Herodho Sheikh Bin Sheikh
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 cause of action survives the death of the plaintiff and can be continued by the estate.
Ratio Decidendi
The court found that the applicant had produced a valid grant ad litem authorizing representation of the deceased plaintiff’s estate. The cause of action, being a claim for recovery of land allegedly transferred fraudulently, survives the death of the plaintiff. There was no opposition to the application, and the court was satisfied that the requirements for substitution under Order 24 of the Civil Procedure Rules were met. Accordingly, the applicant was allowed to substitute the deceased plaintiff, and the suit would proceed for the benefit of the estate.
Court Disposition
application allowed
Orders
- The applicant is substituted as plaintiff in place of the deceased.
- The suit shall proceed in the name of the substituted plaintiff.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO.187 OF 2014
EBRAHIM ATHUMANI MWANGI.................PLAINTIFF
VERSUS
ABDALLA TAIRARA GODORO..........1ST DEFENDANT
HERODHO SHEIKH BIN SHEIKH....2ND DEFENDANT
RULING
(Application for substitution of deceased plaintiff; application allowed)
1. The application before me is that dated 20 February 2019 brought pursuant inter alia to the provisions of Order 24 Rules 3(1) and 3(2) of the Civil Procedure Rules. The application seeks orders that the applicant do substitute the deceased plaintiff.
2. The suit itself was commenced by the plaintiff through a plaint which was filed on 18 May 2010. In the suit, the plaintiff averred that he is the registered proprietor of the land parcel Dundori/Lanet Block 5/384 (New Gakoe). It is averred that the plaintiff wished to sell the property and thus left the title document with his advocate, one Mr. Mohammed who then handed over the same to the 1st defendant, a person known to both the plaintiff and Mr. Mohammed, to scout for buyers. The plaintiff later discovered that the suit land had been transferred to the 2nd defendant and it is his position that this was done fraudulently and through collusion between the 1st defendant and the 2nd defendant. In the suit he wished to have an orders that the title of the 2nd defendant be cancelled and the same to revert back to him.
3. In this application, it is averred that the plaintiff died on 20 March 2018 and that the applicant holds a grant ad litem issued in Nairobi Kadhi’s Court Ad Litem Cause No. 5 of 2019. On the day of the hearing of the application, there was no appearance on the part of counsel for the 1st and 2nd defendants and I take it that they have not seen it necessary to oppose the application. On my part, I see no reason why the application should not be allowed. I have seen a copy of the grant ad litem which is annexed to the supporting affidavit and I have no reason to doubt that the applicant has been appointed as administrator on behalf of the estate of the deceased plaintiff for purposes of pursuing this suit. It is also clear to me that the cause of action survives the death of the plaintiff and the suit can be continued for the benefit of his estate.
4. I therefore allow this application. I allow the substitution of the deceased plaintiff with the applicant and the suit be continued on that basis.
5. I make no orders as to costs.
6. Orders accordingly.
Dated, signed and delivered in open court at Nakuru this 20th day of June 2019.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of : -
Mr. Maiyo holding brief for Mr. Kasim for the applicants.
No appearance for the respondents.
Court Assistants: Nelima Janepher /Patrick Kemboi.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU