[2009] KEHC 3175 (KLR)
The court held that the cause of action, being a claim over land and allegations of fraud, survived the death of the original plaintiff. The applicant, having obtained a limited grant of letters of administration for the purpose of representing the estate in this suit, was entitled to be substituted as plaintiff....
Source-derived case information.
- Citation
- [2009] KEHC 3175 (KLR)
- Parties
- Plaintiff: Esther Chepkurui Laboso; Defendant: John Kipngeno Soi; Applicant: Pius Chepkwony
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 65 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application for Substitution of Deceased Plaintiff
- Outcome
- application for substitution allowed
- Legal Topics
- Substitution of Parties, Survival of Actions, Letters of Administration, Fraud in Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Chepkurui Laboso
Plaintiff
John Kipngeno Soi
Defendant
Pius Chepkwony
Applicant
Procedural Posture
Civil Suit / Ruling on 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 deceased plaintiff under the Civil Procedure Act and Rules.
Ratio Decidendi
The court held that the cause of action, being a claim over land and allegations of fraud, survived the death of the original plaintiff. The applicant, having obtained a limited grant of letters of administration for the purpose of representing the estate in this suit, was entitled to be substituted as plaintiff. The court exercised its discretion under Section 3A of the Civil Procedure Act and Order XXIV rule 3(1) of the Civil Procedure Rules to allow the substitution. The court further directed that an amended plaint be filed within fourteen days and an amended defence within seven days of service. Costs were ordered to be in the cause.
Court Disposition
application for substitution allowed
Orders
- The applicant, Pius Chepkwony, is enjoined to the suit as legal representative of the deceased plaintiff.
- An amended plaint to be filed and served within fourteen (14) days.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Civil Suit 65 of 2004
ESTHER CHEPKURUI LABOSO ……………………………. PLAINTIFF
VERSUS
JOHN KIPNGENO SOI ………………… DEFENDANT/RESPONDENT
AND
PIUS CHEPKWONY …………………………....…………….APPLICANT
RULING
Substituting a party deceased with a legal representative
I: Background
1. The subject of the main suit is land. LR. Kericho/Chemagel/450. The original plaintiff, one Esther Chepkirui Laboso(now deceased) sued her brother in law for fraud. Her trial was begun before Kimaru J on the 30th November, 2005 where she gave evidence. It was adjourned and a second witness gave evidence on the 7th February, 2006. The matter did not proceed to further hearing.
2. On the 12th of August, 2006 the plaintiff passed away. The applicant, a son to the deceased claims that his uncle/defendant herein intends to evict him and their family from the land.
3. On the 13th November, 2007 an application was filed seeking to substitute the plaintiff (deceased).
II: Application 13th November, 2007
4. Under Order XXIV r 3(1) (12) and Section 3A of the Civil Procedure Rules, the applicant states that the plaintiff deceased died on 12th August, 2006 before the suit was finalized. The respondent has since allegedly chased them from the suit property.
5. In the meantime the applicant had obtained letter of grant limited to further representation of the suit. He obtained these letters on 18th October, 2007. He now wishes to continue the suit from where it had left off.
III: Findings
6. Under Section 3A of the Civil Procedure Act I accordingly allow this application. The cause survived the deceased. The letters of grant limited to filing suit was only obtained on 18th October, 2007.
7. There will be orders that the applicant be enjoined to this suit as a legal representative. That an amended plaint be filed and sent within fourteen (14) days and an amended defence be filed within seven (7) days of service.
8. The costs will be in the cause.
DATED this 25th day of May, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
Advocates
J.K. Rono advocate instructed by M/S J.K. Rono & Co. advocates for the Applicant – present
J.M. Motanya advocate instructed by M/S J.M. Motanya & Co. advocate
for the defendant/respondent – present