[2022] KEELC 3850 (KLR)
The court found that the 1st defendant died on November 18, 2018, and more than two years had passed without substitution, resulting in abatement of the suit against him. The plaintiff's application to amend the plaint to strike out the deceased 1st defendant's name was merited, as it would allow the suit to proceed...
Source-derived case information.
- Citation
- [2022] KEELC 3850 (KLR)
- Parties
- Plaintiff: Mohamed Swaleh Fumo; Defendant: Bakari Farah; Defendant: Fatuma Farah
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 128 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Amend Plaint
- Outcome
- Application granted.
- Judges
- NA Matheka
- Legal Topics
- Amendment of Pleadings, Abatement of Suit, Death of Party, Leave of Court, Striking Out Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Swaleh Fumo
Plaintiff
Bakari Farah
Defendant
Fatuma Farah
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to strike out the name of the deceased 1st defendant.
- 2 Whether the suit against the 1st defendant has abated due to his death over two years ago.
Ratio Decidendi
The court found that the 1st defendant died on November 18, 2018, and more than two years had passed without substitution, resulting in abatement of the suit against him. The plaintiff's application to amend the plaint to strike out the deceased 1st defendant's name was merited, as it would allow the suit to proceed properly against the 2nd defendant only. The court was satisfied that the amendment was necessary for the just and conclusive determination of the issues before it. The application was therefore granted as prayed.
Court Disposition
Application granted.
Orders
- Leave is granted to the plaintiff to amend the plaint dated May 29, 2018 as per the draft amended plaint annexed.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
Fumo v Farah & another (Environment & Land Case 128 of 2018) [2022] KEELC 3850 (KLR) (26 July 2022) (Ruling)
Neutral citation: [2022] KEELC 3850 (KLR)
Republic of Kenya
In the Environment and Land Court at Mombasa
Environment & Land Case 128 of 2018
NA Matheka, J
July 26, 2022
Between
Mohamed Swaleh Fumo
Plaintiff
and
Bakari Farah
1st Defendant
Fatuma Farah
2nd Defendant
Ruling
1. The application is dated May 9, 2022 and is brought under order 8 rule 3 and order 51 rule 1 of the Civil Procedure Rules, section 3A of the Civil Procedure Act seeking the following orders;1. That the plaintiff herein be-granted leave to amend the plaint dated May 29, 2018 as per the draft amended plaint annexed hereto.2. That costs be in the cause.
2. It is based on the grounds that the plaintiff / applicant is desirous of amending the plaint dated May 29, 2018 for reasons that the 1st defendant is deceased. That the 1st defendant /respondent died on November 18, 2018 and it is now over 2 years since his death hence the suit against him has abated. That the amendment sought to be done is to strike off his name from the plaint and all other pleadings and proceed with the suit with the 2nd defendant only. That it is imperative for the determination of justice that the pleading be amended as the suit against him has abated to bring out all the issues before the court for a just and conclusive determination.
3. This court has considered the application and the submissions therein the application was not opposed. It is based on the grounds that the 1st defendant /respondent died on November 18, 2018 and it is now over 2 years since his death hence the suit against him has abated. That the amendment sought to be done is to strike off his name from the plaint and all other pleadings and proceed with the suit with the 2nd defendant. The applicants have attached the 1st defendant’s death certificate to prove the same. I find that the application is merited and i grant the same as prayed.It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 26TH DAY OF JULY 2022. N.A. MATHEKAJUDGE