[2013] KEELC 28 (KLR)
The court found that although the application for substitution was filed outside the one-year period prescribed by Order 24 Rule 4(3), there was no opposition from the other parties and no serious prejudice would be caused by allowing the substitution. The court also noted some doubt as to whether the cause of...
Source-derived case information.
- Citation
- [2013] KEELC 28 (KLR)
- Parties
- Plaintiff: Emily Misoi; Defendant: The Director Sambu Farm & 3 Others; Defendant: Wilfred Kimeli Keter (substituted for Kipketer arap Songol, deceased)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 51 of 2012
- Procedural Posture
- Miscellaneous Application / Application for Substitution of Deceased Defendant
- Outcome
- Application for substitution allowed.
- Legal Topics
- Substitution of Parties, Survival of Cause of Action, Letters of Administration, Procedural Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emily Misoi
Plaintiff
The Director Sambu Farm & 3 Others
Defendant
Wilfred Kimeli Keter (substituted for Kipketer arap Songol, deceased)
Defendant
Procedural Posture
Miscellaneous Application / Application for Substitution of Deceased Defendant
Legal Issues
- 1 Whether the applicant should be substituted as the 2nd defendant in place of the deceased Kipketer arap Songol.
- 2 Whether the application for substitution, filed out of time, should be allowed given the absence of opposition and potential prejudice.
Ratio Decidendi
The court found that although the application for substitution was filed outside the one-year period prescribed by Order 24 Rule 4(3), there was no opposition from the other parties and no serious prejudice would be caused by allowing the substitution. The court also noted some doubt as to whether the cause of action survived against the deceased, who was sued as a director, but determined that allowing the substitution would not result in serious harm. Consequently, the application for substitution was allowed and Wilfred Kimeli Keter was permitted to be substituted as the 2nd defendant in place of Kipketer arap Songol (deceased). No order as to costs was made.
Court Disposition
Application for substitution allowed.
Orders
- Wilfred Kimeli Keter is substituted as the 2nd defendant in place of Kipketer arap Songol (deceased).
- The suit shall proceed on that premise.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E&L 51 OF 2012
Formerly HCC 88 of 2000
EMILY MISOI...................................................................................PLAINTIFF
VS
THE DIRECTOR SAMBU FARM & 3 OTHERS..........................DEFENDANT
(application for substitution; application unopposed; application allowed).
RULING
This is an application seeking to substitute the original 2nd defendant, Kipketer arap Songol (now deceased) with one Wilfred Kimeli Keter.
Kipketer arap Songol died on 27th April 2012. The said Wilfred Kimeli Keter applied vide Ad Litem Application No. 79 of 2013 in the High Court at Eldoret, to be granted letters of administration Ad Litem, limited for purposes of defending this suit. The application was allowed and grant of letters issued on 20th May 2013.
Order 24 allows a substitution where a party to a suit dies and the cause of action survives. The 2nd defendant in this suit was sued as a director of Sambul Farm. I am not too sure that the cause of action survives, as it seems to me that the defendant was sued in his capacity as director. But again, I may be wrong, and I guess no serious harm will be done to the parties if I allow the substitution. I have also seen that the application for substitution was filed a little out of time as Order 24 Rule 4 (3) provides that an application for substitution ought to be made within one year of death. However, the other parties have no objection to this application for substitution, and I guess no serious prejudice will be caused to either party, if I allow the application though filed out of time.
I therefore allow the application, and permit the applicant, Wilfred Kimeli Keter to be substituted in place of Kipketer arap Songol (deceased) and that he be the 2nd defendant to this suit. The suit shall proceed on that premise. I make no orders as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED THIS 26TH DAY OF NOVEMBER 2013
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET
Read in open Court In the Presence of:-
Mr. F.O. Mukabane for the 2nd defendant / applicant
Mrs. L.C. Kamau h/b for Mr Chepkwony for plaintiff