[2019] KEELC 4763 (KLR)
The court held that it cannot issue or reissue eviction orders against respondents who are deceased, as orders cannot be targeted at deceased persons. The applicant must identify and substitute the administrators of the estates of the deceased respondents or file citations if no letters of administration have been...
Source-derived case information.
- Citation
- [2019] KEELC 4763 (KLR)
- Parties
- Applicant: Erastus Ndungu Charagu & Another; Respondent: Isaac Mwangi Mwaura & 5 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 7 of 2006
- Procedural Posture
- Elc Appeal / Ruling on Application for Reissuance of Eviction Order and Related Reliefs
- Outcome
- application deferred pending substitution of deceased respondents
- Judges
- FM Njoroge
- Legal Topics
- Eviction Orders, Substitution of Parties, Enforcement of Judgments, Deceased Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erastus Ndungu Charagu & Another
Applicant
Isaac Mwangi Mwaura & 5 Others
Respondent
Procedural Posture
Elc Appeal / Ruling on Application for Reissuance of Eviction Order and Related Reliefs
Legal Issues
- 1 Whether the court can reissue an eviction order against respondents, some of whom are deceased, without substitution of parties.
- 2 Whether the application for eviction is competent in light of the death of most respondents and lack of substitution.
- 3 Whether the court's previous orders regarding eviction have been conclusively determined and whether the current application is an abuse of process.
Ratio Decidendi
The court held that it cannot issue or reissue eviction orders against respondents who are deceased, as orders cannot be targeted at deceased persons. The applicant must identify and substitute the administrators of the estates of the deceased respondents or file citations if no letters of administration have been taken out. Only upon proper substitution can the application for eviction proceed. The Chamber Summons dated 17/9/2018 is therefore deferred until substitution is undertaken, as proceeding otherwise would be contrary to the rules of procedure and would render any orders made a nullity.
Court Disposition
application deferred pending substitution of deceased respondents
Orders
- The Chamber Summons dated 17/9/2018 is deferred until substitution of deceased respondents is undertaken.
- The applicant is directed to identify and enjoin administrators of the estates of the deceased respondents or file citations if no letters of administration exist.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
ELC APPEAL NO. 7 OF 2006
(FORMERLY ELDORET HCC NO. 41 OF 1988)
ERASTUS NDUNGU CHARAGU & ANOTHER.................APPLICANTS
VERSUS
ISAAC MWANGI MWAURA & 5 OTHERS......................RESPONDENTS
DIRECTIONS
1. This is a ruling on an application dated 17th September 2018 filed on the same date by the plaintiff. It seeks the following orders:-
(1) …….(spent)
(2) The court be pleased to reissue an eviction order against the respondents from the applicant’s land known as Sinyerere Kipsaina Block 3 /7145/2.
(3) The OCS Kachibora Police Station be directed to ensure that the orders of the court made herein are complied with.
(4) The respondents to surrender the cancelled titles to the office of the Land Registrar Trans Nzoia County.
2. The grounds upon which the application is brought are as follows:-
1. The court issued an eviction order on 11/11/2004.
2. The applicant has tried to evict the respondents from his land but in vain.
3. An order of this court is required in order to evict the respondents.
3. The notice of motion is supported by the sworn affidavit of Erastus Ndungu Charagu sworn on 17/9/2018. It reiterates the grounds at the foot of the application. A report is attached to the application. It is made by the office of the deputy county commissioner Trans-Nzoia; it narrates reconciliation efforts exerted by that office.
4. Grounds of opposition were filed for the respondents on 2/10/2018. They term the application as lacking in merit, incompetent and an abuse of the court process; the respondents further indicate that the 1st 3rd 4th 5th and 6th respondents are deceased and that substitution is necessary before any orders are issued, which has not been effected. It is further stated that the 2nd respondent is senile (84 years old) and can not give instructions, and that an order of eviction can only be issued at a final and not an interlocutory stage. Finally, it is stated that the ruling of the court issued on 22/5/2007 determined the issue of eviction and should have been appealed against or reviewed.
5. A sworn affidavit dated 9/4/2018 of Gideon Barongo Advocate representing the respondents is in the record. He states in that affidavit that he has received information from the surviving relatives of some of the respondents that the 1st, 3rd, 4th, 5th and 6th respondents are deceased and he attaches the copies of their death certificates. According to that affidavit only the 2nd respondent has outlived all the others and he is old frail and sickly. A medical record is exhibited to show this. In view of the foregoing, it is deponed that there is no surviving respondent who can respond to the application, and substitution of all save the 2nd respondent is needed if proceedings are to continue.
6. I sympathize with the applicant’s situation and in my view it would be fit and just if this matter was concluded at the earliest date possible if only to get the parties out of the court corridors and pave the way for the handling of other matters that are still pending hearing.
7. However I agree with the counsel for the respondents; if the respondents are deceased then the matter can not continue as orders can not be targeted at deceased persons.
8. The applicant shall as soon as possible either identify the administrators of the estates of the deceased respondents or enjoin them so that the orders of this court may be targeted at specific persons representing the estates and all those estates encompass.
9. Alternatively if he finds that no letters of administration have been taken out in respect of those estates the applicant may file citations to enable this matter move.
10. For the above reasons, I find that the Chamber Summons dated 17/9/2018 is deferred till substitution has been undertaken in this suit.
Dated, signed and delivered at Kitale on this 4th day of February, 2019.
MWANGI NJOROGE
JUDGE
04/02/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Applicant (Erastus) in person
N/A for the respondent
COURT
Directions read in open court.
MWANGI NJOROGE
JUDGE
04/02/2019