[2012] KEHC 4537 (KLR)
The court found that the applicant, Peter Njagi Njue, having obtained Limited Letters of Grant, is the proper legal representative to be enjoined in place of the deceased defendant. The court noted that the main suit had already been determined and judgment delivered, with a decree drawn. The defendant's application...
Source-derived case information.
- Citation
- [2012] KEHC 4537 (KLR)
- Parties
- Plaintiff: George Mudiah Gicheru; Defendant: Cheleste Njue Aremkanya; Applicant: Peter Njagi Njue
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 69 of 2007
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application Post Judgment
- Outcome
- Application partly allowed.
- Legal Topics
- Substitution of Parties, Land Inhibition Orders, Status Quo Orders, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
George Mudiah Gicheru
Plaintiff
Cheleste Njue Aremkanya
Defendant
Peter Njagi Njue
Applicant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application Post Judgment
Legal Issues
- 1 Whether the applicant should be enjoined as the legal representative of the deceased defendant.
- 2 Whether inhibition orders should be issued to prevent dealings with the suit land pending determination of the application.
- 3 Whether status quo orders should be maintained regarding possession and use of the land.
Ratio Decidendi
The court found that the applicant, Peter Njagi Njue, having obtained Limited Letters of Grant, is the proper legal representative to be enjoined in place of the deceased defendant. The court noted that the main suit had already been determined and judgment delivered, with a decree drawn. The defendant's application to set aside the ex parte judgment, filed on 13/8/2009, had not been prosecuted. The court held that it would be unjust to the plaintiff to allow further delay, given that the judgment remains unchallenged. The court allowed the substitution of the legal representative and ordered the defence to prosecute their pending application within 90 days, failing which it would be...
Court Disposition
Application partly allowed.
Orders
- Peter Njagi Njue is enjoined as the legal representative of the deceased defendant.
- The defence is granted 90 days to prosecute the application dated 13/8/2009; failure to do so will result in its dismissal and the plaintiff may proceed to execute the decree.
Full Case Text
Judgment text and source record
33 paragraphs
[if !mso]> <style> v\\\\:* {behavior:url(#default#VML);} o\\\\:* {behavior:url(#default#VML);} w\\\\:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
MicrosoftInternetExplorer4
</xml><![endif][if gte mso 9]><![endif][if !mso]> <style> st1\\\\:*{behavior:url(#ieooui) } </style> <![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:\\\"Table Normal\\\"; mso-style-parent:\\\"\\\"; font-size:10. 0pt;\\\"Times New Roman\\\",\\\"serif\\\";} </style> <![endif]
REPUBLIC OF KENYA
IN THE HIGH COURT
AT EMBU
Civil Case 69 of 2007
GEORGE MUDIAH GICHERU…............………………PLAINTIFF/RESPONDENT
VERSUS
CHELESTE NJUE AREMKANYA ………………………………..…. DEFENDANT
PETER NJAGI NJUE …………………………………………………. APPLICANT
R U L I N G
This is the Notice of Motion dated 30/12/2011 brought under Order 50 rule 1, Order 24 rule 4(1) Civil Procedure Rules and section 128 Registered Land Act seeking the following orders;
1. The enjoining of Peter Njagi Njue (Applicant) as the legal representative of the deceased Defendant.
2. Inhibition to stop any dealings with land parcel No.Muthambi/Gamurathi/268 until final determination of the application and suit herein.
3. For Status Quo to be maintained as it is with respect to possession and use of the said land.
The grounds are in the body of the application. The Applicant is a son of the deceased herein. There is also a supporting affidavit by the Applicant.
The Defendant has filed a long replying affidavit which he relied on.
Both Counsels submitted orally expanding on what is in the affidavits. From the record I can see it was the Plaintiff vide an application dated 29/6/2011 that introduced FLAVIA MUKWANJERU ERENKANYA as a 3rd party in respect of that application. It’s now clear that the present Applicant is the one who has Limited Letters of Grant. And since the Defendant is deceased the Applicant has the authority to represent him. I grant that prayer.
The position in this file is that there is no suit pending since the same was heard and Judgment delivered on 23/4/2008. A decree was accordingly drawn.
On 13th August 2009 the defendant then filed an application to set aside the exparte judgment. To date that application has never been prosecuted. Wh at has been coming up are other applications yet the Judgment has remained intact. This is unfair and unjust to the Plaintiff who has a Judgment in his favour, and he is the registered proprietor of the land. The late Defendant before his death had all the time to contest the decree herein. I do appreciate that this is a matter touching on land. From the record I can see there was an issue over the late Defendant’s final resting place. Now that an administrator has come on record I am giving the Defence 90 days within which to have their application dated 13/8/2009 prosecuted and determined on merits. Failure to comply will automatically lead to its dismissal and the Plaintiff to proceed to execute the decree. I am not issuing any inhibition orders for now.
I however order that the Status Quo prevailing as at now to remain.
The upshot is that prayers No.2 and 4 are allowed. Costs to the Plaintiff/Respondent.
DATED, SIGNED AND DELIVERED AT EMBU THIS 10TH DAY OF MAY 2012.
H.I. ONG’UDI
JUDGE
In the presence of;
M/s Muthoni for K. Kioga for Applicant/Defendnat
Njue C/c
Parties