[2015] KEHC 4414 (KLR)
The court found that the applicant, having obtained letters of administration ad litem, is entitled to be substituted as plaintiff in place of the deceased, as the cause of action survives the death of the original plaintiff. The application was made within the statutory period of one year from the date of death,...
Source-derived case information.
- Citation
- [2015] KEHC 4414 (KLR)
- Parties
- Plaintiff: Eunice Chepngetich Ngasura; Defendant: Tapnyobii Chebii Ngasura; Defendant: Philemon Rotich alias David; Applicant: Benard Kibet Rono
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 28 of 2014
- Procedural Posture
- Civil Suit / Ruling on Application for Substitution of Deceased Plaintiff
- Outcome
- Application for substitution allowed.
- Legal Topics
- Substitution of Parties, Letters of Administration Ad Litem, Survival of Cause of Action, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Chepngetich Ngasura
Plaintiff
Tapnyobii Chebii Ngasura
Defendant
Philemon Rotich alias David
Defendant
Benard Kibet Rono
Applicant
Procedural Posture
Civil Suit / Ruling on Application for Substitution of Deceased Plaintiff
Legal Issues
- 1 Whether the applicant should be substituted as plaintiff in place of the deceased under Order 24 Rule 3 of the Civil Procedure Rules.
- 2 Whether the application for substitution was made within the prescribed time after the plaintiff's death.
- 3 Whether the cause of action survives the death of the original plaintiff.
Ratio Decidendi
The court found that the applicant, having obtained letters of administration ad litem, is entitled to be substituted as plaintiff in place of the deceased, as the cause of action survives the death of the original plaintiff. The application was made within the statutory period of one year from the date of death, and there was no opposition from the defendants. The court exercised its discretion under Order 24 Rule 3 of the Civil Procedure Rules to allow the substitution, ensuring the suit could proceed for the benefit of the deceased's estate.
Court Disposition
Application for substitution allowed.
Orders
- The applicant, Benard Kibet Rono, is substituted as plaintiff in place of the deceased, Eunice Chepngetich Ngasura.
- The plaintiff to amend the plaint within 14 days to reflect the substitution.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT KERICHO
CIVIL SUIT NO. 28 OF 2014
EUNICE CHEPNGETICH ……………..........……………..PLAINTIFF
VERSUS
TAPNYOBII CHEBII NGASURA……………....…..1ST DEFENDANT
PHILEMON ROTICH ALIAS DAVID……………..2ND DEFENDANT
RULING
(Application for substation; plaintiff having died; applicant holding grant of letters of administration ad litem; application unopposed; application allowed)
The application before me is that dated 20th February, 2015 filed by one Benard Kibet Rono. The applicant wants orders that he be made a party to this suit in place of the plaintiff, Eunice Chepngetich Ngasura, who is said to be deceased. Several grounds have been listed in support of the application and the application is supported by the affidavit of the applicant.
This suit was commenced on 27th June, 2014. The original plaintiff averred that she is the daughter of the 1st defendant and sister to the 2nd defendant. The subject matter of the suit is the land parcel Kericho/Silibwet/33 measuring approximately 6. 5 acres and which is in the name of the 1st defendant. The case as pleaded is that the plaintiff is entitled to 2 acres of it and that the 1st defendant is merely holding the land in trust.
As the matter was pending, the plaintiff died on 19th September 2014. On 9th February 2015, the applicant was granted letters of administration ad litem, vide Kericho High Court, Ad Litem Cause No. 11 of 2015. Through this application, the applicant wants to be substituted for the deceased plaintiff and continue this suit for the benefit of the estate of the deceased.
The application is not opposed by the defendants. On my part I do not see any reason to deny it. Order 24 Rule 3 does allow a legal representative of a deceased party to be made party to the proceedings if the cause of action survives the death of the litigant. The application has been made within one year of death as contemplated by the Rules. It is hereby allowed. I however make no orders as to costs.
I direct that the plaintiff does proceed to amend the plaint to reflect the change in circumstances within 14 days of today.
It is so ordered.
Dated, Signed and delivered on this 8th Day of May, 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
PRESENT
Ms. Misoi for the defendant/Respondent
No appearance for M/s Kipkorir Tele & Kitur Advocates for Plaintiff/Applicant
C/c; Miriam Sitienei