[2019] KEELC 2328 (KLR)
The court found that the plaintiff failed to provide any evidence of the 2nd defendant's death, such as a death certificate, nor did he demonstrate that the proposed substitutes were legal representatives by way of letters of administration. Without such proof, the requirements of Order 24 of the Civil Procedure...
Source-derived case information.
- Citation
- [2019] KEELC 2328 (KLR)
- Parties
- Plaintiff: George J.K. Kabugi; Defendant: Norah Atieno Olweny; Defendant: Washington Olweny t/a Olweny Associates; Defendant: Samwel Ndungu Mungai
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 139 of 2012
- Procedural Posture
- Notice of Motion / Ruling on Application for Substitution of Party
- Outcome
- application dismissed
- Judges
- DO Ohungo
- Legal Topics
- Party Substitution, Abatement of Suit, Legal Representatives, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George J.K. Kabugi
Plaintiff
Norah Atieno Olweny
Defendant
Washington Olweny t/a Olweny Associates
Defendant
Samwel Ndungu Mungai
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Substitution of Party
Legal Issues
- 1 Whether sufficient proof has been provided that the 2nd defendant is deceased.
- 2 Whether the application for substitution was made within the prescribed time under Order 24 of the Civil Procedure Rules.
- 3 Whether the proposed substitutes are legal representatives of the deceased's estate as required by law.
Ratio Decidendi
The court found that the plaintiff failed to provide any evidence of the 2nd defendant's death, such as a death certificate, nor did he demonstrate that the proposed substitutes were legal representatives by way of letters of administration. Without such proof, the requirements of Order 24 of the Civil Procedure Rules and Section 2 of the Civil Procedure Act were not met. Consequently, the application for substitution could not be granted. The court also noted that, even if death had been established, the timing of the application and the abatement of the suit would need to be considered, but these issues were not reached due to the lack of foundational evidence. The application was...
Court Disposition
application dismissed
Orders
- Notice of Motion dated 17th April 2018 is dismissed with costs to the 3rd defendant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
CASE No. 139 OF 2012
GEORGE J.K. KABUGI.........................................................................PLAINTIFF
VERSUS
NORAH ATIENO OLWENY.......................................................1ST DEFENDANT
WASHINGTON OLWENY t/a OLWENY ASSOCIATES.......2ND DEFENDANT
SAMWEL NDUNGU MUNGAI................................................3RD DEFENDANT
RULING
1. By Notice of Motion dated 17th April 2018, the plaintiff urges the court to order substitution of the 2nd defendant with his wives Phelesiah Akoth Olweny and Anne Lenah Wanjiru Olweny. The application is brought inter alia under Order 24 of the Civil Procedure Rules and is supported by an affidavit sworn by the plaintiff. He deposed that the 2nd defendant is deceased and that Phelesiah Akoth Olweny and Anne Lenah Wanjiru Olweny were the deceased’s wives.
2. The 1st defendant neither responded to the application nor participated in its hearing. On his part, the 3rd defendant filed a replying affidavit in which he stated that the applicant has not shown any proof that the 2nd defendant is deceased or that Phelesiah Akoth Olweny and Anne Lenah Wanjiru Olweny are his legal representatives.
3. The application was heard through written submissions which parties duly filed and exchanged. I have considered the application, the affidavits filed and the submissions.
4. From the onset, it must be noted that the present application is brought by the plaintiff and not by Phelesiah Akoth Olweny and Anne Lenah Wanjiru Olweny. The ground upon which the application is brought is that the 2nd defendant is deceased. No certificate of death or some other acceptable evidence of death is annexed. The applicant does not even state how he became aware of the 2nd defendant’s death. In such circumstances, I am not persuaded that the 2nd defendant is deceased. I would dismiss the application on that score alone.
5. Even if it was established that the 2nd defendant is deceased, the next question would be the date when the death occurred. That detail is important since under Order 24 rule 3(2)of theCivil Procedure Rules, an application for substitution has to be made within one year of death, failing which the suit abates. The present application is for substitution only yet we do not know whether the claim against the 2nd defendant abated.
6. Assuming that the claim against the 2nd defendant has not abated, the applicant would need to satisfy the court that Phelesiah Akoth Olweny and Anne Lenah Wanjiru Olweny are legal representatives of the 2nd defendant’s estate. The phrase “legal representative” is defined at Section 2of theCivil Procedure Act as follows:
“legal representative” means a person who in law represents the estate of a deceased person, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
7. There are many authorities which reiterate that to sue or to be sued on behalf of the estate of a deceased person one must first obtain grant of letters of administration. See Trouistik Union International & another v Jane Mbeyu & another [1993] eKLR. The applicant herein has not stated that Phelesiah Akoth Olweny and Anne Lenah Wanjiru Olweny hold any grant of letters of administration in respect of the 2nd defendant’s estate. Indeed, he has not annexed any letters of administration. There is thus no proof that Phelesiah Akoth Olweny and Anne Lenah Wanjiru Olweny are legal representatives of the 2nd defendant’s estate.
8. In view of the foregoing discussion, the orders sought cannot issue. Notice of Motion dated 17th April 2018 is dismissed with costs to the 3rd defendant.
9. Ruling herein was to be delivered on 20th February 2019 but was delayed since I proceeded on medical leave. The delay is regretted.
Dated, signed and delivered in open court at Nakuru this 15th day of July 2019.
D. O. OHUNGO
JUDGE
In the presence of:
No appearance for the plaintiff/ applicant
No appearance for the 1st and 2nd defendants/respondents
Mr Karanja Mbugua for the 3rd defendant/respondent
Court Assistants: Beatrice & Lotkomoi