[2017] KEELC 2296 (KLR)
The court found that the application for a third party notice against HFCK was well founded, as there were unresolved issues regarding the redemption of the property and the subsequent claim by the deceased. The evidence showed the applicant had paid to redeem the property and received a refund for the excess....
Source-derived case information.
- Citation
- [2017] KEELC 2296 (KLR)
- Parties
- Plaintiff: George Rombo; Defendant: Jones Gibson Mwangi; Respondent: Valerie Ombajo Rombo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 464 of 2007
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Applications
- Outcome
- Application for third party notice allowed; application for substitution dismissed.
- Legal Topics
- Third Party Procedure, Substitution of Parties, Public Auction Disputes, Redemption of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Rombo
Plaintiff
Jones Gibson Mwangi
Defendant
Valerie Ombajo Rombo
Respondent
Procedural Posture
Civil Suit / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether a third party notice should issue against Housing Finance Company of Kenya (HFCK).
- 2 Whether Valerie Ombajo Rombo can be substituted as plaintiff in place of the deceased George Rombo.
Ratio Decidendi
The court found that the application for a third party notice against HFCK was well founded, as there were unresolved issues regarding the redemption of the property and the subsequent claim by the deceased. The evidence showed the applicant had paid to redeem the property and received a refund for the excess. However, the application for substitution of the deceased with Valerie Ombajo Rombo was dismissed because there was no evidence she was the legal representative of the deceased's estate, and no grant of letters of administration ad litem had been obtained as previously directed by the court. The suit by the deceased had abated, and substitution could only occur after revival of the...
Court Disposition
Application for third party notice allowed; application for substitution dismissed.
Orders
- Third party notice to issue against Housing Finance Company of Kenya (HFCK).
- Application for substitution of deceased with Valerie Ombajo Rombo dismissed with no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MILIMANI
ELC CIVIL SUIT NO. 464 OF 2007
FORMELY HCCC NO.2087 OF 2011
GEORGE ROMBO............................................PLAINTIFF/RESPONDENT
VERSES
JONES GIBSON MWANGI................................DEFENDANT/APPLICANT
RULING
1. The Defendant/ Applicant Jones Gibson Mwanga filed two Applications. The first one is by way of Chamber Summons dated 10th November 2014 in which he seeks a third party notice to be issued against Housing Finance Company of Kenya (HFCK). The other Application is by way of Notice of Motion dated 11th November 2014 in which he seeks that George Rombo be substituted with Valerie Ombajo Rombo.
2. The Defendant/Applicant had been sued by George Rombo (Deceased) who sought orders barring the Applicant from interfering with a property known as LR No Nairobi Block 76/810 which the deceased contended that he had purchased during a public auction.
3. The Applicant had taken a loan from HFCK which he was to repay for a period of 15 years with effect from 1979. The Applicant contends HFCK put up the property for sale on allegation that he had failed to repay the loan as agreed. The Applicant sought for Kshs. 1,700,000 which he paid to HFCK and that HFCK refunded to him Kshs.420,000 being the excess amount after he redeemed the property.
4. The Applicant further contends that the deceased later sued him on grounds that he had purchased the same property at a public auction. The Applicant contends that the deceased did not purchase the property and that there was a fraudulent scheme involving HFCK and the deceased to deprive him of his property. It is on this basis that he seeks a third party notice to issue against HFCK and an order made that the deceased be substituted by his wife Valerie Ombajo Rombo.
5. I have considered the two Applications. The first Application is one that is brought ex-parte. However the record in this file shows that the third party was served. This followed directions of the court from the supporting affidavit of the application for issuance of a third party notice. It is clear that there are issues which call for the third party to be brought on board so that the issues in this matter can be addressed.
6. There is evidence that the applicant paid Kshs. 1, 700,000 to redeem his property. There is also evidence that there was a refund of Kshs. 420,000 to the applicant being refund of the excess paid. The court would like to know on what basis the deceased was again claiming to have bought the same property which had been redeemed by the applicant. To this extent, I find that the Application for third party notice is well founded. I allow the Application dated 10th November 2014.
7. On the issue of the second Application which seeks substitution of the deceased with his wife Valerie Ombajo Rombo, there is no evidence that the said Valarie Ombajo Rombo is the legal representative of the estate of the deceased. It is clear that on 21st March 2007 Justice Aluoch issued an order that counsel for the deceased was to ensure that grant of letters ad litem were obtained to enable the suit to go on. The Judge gave 30 days within which those letters ad litem were to be obtained.
8. There is no evidence to show that such grant of letters of administration ad litem were obtained. The deceased’s suit against the applicant abated one year after the demise of the deceased. The suit can only be continued after the same is revived and a legal representative of the deceased takes up the same. I cannot therefore order substitution of the deceased with a person who is not a legal representative of the estate of the deceased. It is on this basis that I decline to grant orders of substitution of the deceased with Valerie Ombajo Rombo. The upshot of this is that the Applicant’s Application dated 11th November 2014 is dismissed with no order as to costs.
It is so ordered.
DATED, SIGNEDand DELIVEREDat NAIROBI on this 31st day of May 2017
E.O OBAGA
JUDGE0
In the presence of applicant in person
Court assistant – Hilda.