[2022] KEELC 1760 (KLR)
The court found that the 2nd defendant died on 31.10.2020 and the application for substitution was filed on 28.10.2021, which is within the one-year period prescribed by Order 24 Rule 4 of the Civil Procedure Rules. The court held that the requirements for substitution had been met, as the proposed party, Zipporah...
Source-derived case information.
- Citation
- [2022] KEELC 1760 (KLR)
- Parties
- Plaintiff: Esther Kanugu Muriungi; Defendant: John Mbaabu Mwiithimbu; Defendant: Charles Gatobu Mwithimbu; Defendant: Zipporah Ndumba Gatobu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 41 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Substitution of Party Due to Death
- Outcome
- application for substitution granted
- Legal Topics
- Substitution of Parties, Death of Defendant, Legal Representatives, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Kanugu Muriungi
Plaintiff
John Mbaabu Mwiithimbu
Defendant
Charles Gatobu Mwithimbu
Defendant
Zipporah Ndumba Gatobu
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Substitution of Party Due to Death
Legal Issues
- 1 Whether the legal representative of the deceased 2nd defendant should be substituted as a party to the suit within the statutory period.
- 2 Whether the application for substitution was filed within the time prescribed by law.
Ratio Decidendi
The court found that the 2nd defendant died on 31.10.2020 and the application for substitution was filed on 28.10.2021, which is within the one-year period prescribed by Order 24 Rule 4 of the Civil Procedure Rules. The court held that the requirements for substitution had been met, as the proposed party, Zipporah Ndumba Gatobu, had been appointed as legal representative of the deceased's estate. Therefore, the court granted the application for substitution and directed that the plaint be amended and served upon the new defendant, who would have liberty to file a defence within 15 days of service.
Court Disposition
application for substitution granted
Orders
- The plaint shall be amended as appropriate to reflect the substitution of the legal representative.
- The amended plaint shall be served upon Zipporah Ndumba Gatobu as legal representative of the deceased 2nd defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 41 OF 2018
ESTHER KANUGU MURIUNGI ..................................................PLAINTIFF
VERSUS
JOHN MBAABU MWIITHIMBU........................................1ST DEFENDANT
CHARLES GATOBU MWITHIMBU .................................2ND DEFENDANT
RULING
1. The plaintiff by an application dated 28. 10. 2021 seeks to have Zipporah Ndumba Gatobu joined as a party to this suit in place of the 2nd defendant who passed on 31. 10. 2020. The application is supported by an affidavit sworn on 28. 10. 2021 by Esther Kanugu Muriungi.
2. The reasons given are that the 2nd defendant passed on during the pendency of this suit but her daughter the proposed defendant was appointed as a legal representative to the estate as per the attached limited grant hence the need to bring her to the case.
3. Order 24 Rule 4 provides that upon the death of a defendant where a cause of action survives, the court on an application shall cause a legal representative of the deceased defendant to be made a party and shall proceed with the suit and if the application to substitute is not made within a year, the suit shall abate as against the deceased defendant.
4. In this suit, the 2nd defendant passed on 31. 10. 2020 while this application was filed on 28. 10. 2021. This was within the timeframe given by the law.
5. In the premises, I am inclined to grant the orders sought.
6. Consequently, I direct the plaint be amended as appropriate and be served upon the aforesaid legal representative who in line with Order 24 Rule 4 (2), shall be at liberty to put in a defence within 15 days upon service with the amended plaint.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 2ND DAY OF FEBRUARY, 2022
IN PRESENCE OF:
KIRUJA FOR PLAINTIFF/APPLICANT
DEFENDANTS - ABSENT
COURT KANANU
HON. C.K. NZILI
ELC JUDGE