[2017] KEELC 2565 (KLR)
The court found that the application for substitution of the deceased 1st defendant with his son was meritorious and purely procedural. Allowing the substitution would save time and enable the suit to be heard expeditiously, ensuring the estate of the deceased is properly represented and its rights protected. The...
Source-derived case information.
- Citation
- [2017] KEELC 2565 (KLR)
- Parties
- Plaintiff: Emilio Mputhia Mutiria; Defendant: Basilio Gitonga Kirimi Sebastian; Defendant: Wilfrend Kiruja Kathendu; Defendant: Elias Ndeke Mucheke; Defendant: Lawrence Kibaara Gitonga; Applicant: Joseph Mwirigi Kirimi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 54 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Deceased Defendant
- Outcome
- Application allowed.
- Judges
- FM Njoroge
- Legal Topics
- Substitution of Parties, Death of Defendant, Procedural Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emilio Mputhia Mutiria
Plaintiff
Basilio Gitonga Kirimi Sebastian
Defendant
Wilfrend Kiruja Kathendu
Defendant
Elias Ndeke Mucheke
Defendant
Lawrence Kibaara Gitonga
Defendant
Joseph Mwirigi Kirimi
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Deceased Defendant
Legal Issues
- 1 Whether the deceased 1st defendant should be substituted by his son as a party to the suit.
Ratio Decidendi
The court found that the application for substitution of the deceased 1st defendant with his son was meritorious and purely procedural. Allowing the substitution would save time and enable the suit to be heard expeditiously, ensuring the estate of the deceased is properly represented and its rights protected. The absence of opposition and the procedural nature of the application justified granting the orders sought.
Court Disposition
Application allowed.
Orders
- Joseph Mwirigi Kirimi is substituted as the 1st defendant in place of Basilio Gitonga Kirimi Sebastian (deceased).
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 54 OF 2017
FORMERLY MERU ELC CASE NO.285 OF 2016
EMILIO MPUTHIA MUTIRIA...........................................PLAINTIFF
VERSUS
BASILIO GITONGA KIRIMI SEBASTIAN..……..1ST DEFENDANT
WILFREND KIRUJA KATHENDU……………....2ND DEFENDANT
ELIAS NDEKE MUCHEKE……………………....3RD DEFENDANT
LAWRENCE KIBAARA GITONGA………....……4TH DEFENDANT
JOSEPH MWIRIGI KIRIMI………………………........APPLICANT
RULING
1. This application is dated 21st June, 2017 and seeks orders that:
1. The Honourable Court be pleased to substitute BASILIO GITONGA KIRIMI SEBASTIAN (deceased) with his son JOSEPH MWIRIGI KIRIMI as first defendant.
2. Costs be in the cause.
2. The application is supported by the affidavit of JOSEPH MWIRIGI KIRIMI and has the following ground:
(a) That the 1st defendant is deceased and needs to be substituted.
3. Mr. Mutani for the defendants urged the court, even without the presence of the plaintiff’s advocate to allow the application as it as merely procedural in that it sought the substitution of the 1st defendant with his son. He opined that the estate of the deceased 1st defendant was entitled to be enjoined to enable it to procect its rights.
4. To save time and to enable the suit to be heard expeditiously, and since this application is merely procedural, I find that it is meritorious.
5. In the circumstances, it is allowed.
6. Cost shall be in the cause.
7. It is so ordered.
Delivered in open court at Chuka this 28th day of June, 2017 in the presence of:
CA: Ndegwa
Mutani for the defendants
P. M. NJOROGE
JUDGE