[2018] KEELC 3550 (KLR)
The court found that the applicant, having produced a valid death certificate and a grant of letters of administration ad litem, is entitled to be substituted as plaintiff in place of the deceased. The cause of action, being a claim for adverse possession, survives the deceased and can be prosecuted by the estate....
Source-derived case information.
- Citation
- [2018] KEELC 3550 (KLR)
- Parties
- Plaintiff: Gichemi Njuguna; Defendant: Brendan Kimani Kamanu; Defendant: Mwathi Ndibaru; Applicant: Paul Mwangi Gichemi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 308 of 2015
- Procedural Posture
- Miscellaneous Application / Application for Substitution of Deceased Plaintiff
- Outcome
- application allowed
- Legal Topics
- Adverse Possession, Substitution of Parties, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gichemi Njuguna
Plaintiff
Brendan Kimani Kamanu
Defendant
Mwathi Ndibaru
Defendant
Paul Mwangi Gichemi
Applicant
Procedural Posture
Miscellaneous Application / Application for Substitution of Deceased Plaintiff
Legal Issues
- 1 Whether the applicant should be substituted in place of the deceased plaintiff to continue the suit on behalf of the estate.
- 2 Whether a claim for adverse possession survives the death of the original plaintiff and can be prosecuted by the estate.
Ratio Decidendi
The court found that the applicant, having produced a valid death certificate and a grant of letters of administration ad litem, is entitled to be substituted as plaintiff in place of the deceased. The cause of action, being a claim for adverse possession, survives the deceased and can be prosecuted by the estate. There being no opposition to the application and no legal impediment, the court allowed the substitution to enable the estate to continue the suit for the benefit of the deceased's heirs.
Court Disposition
application allowed
Orders
- The applicant, Paul Mwangi Gichemi, is substituted in place of the deceased plaintiff, Gichemi Njuguna, to continue the suit on behalf of the estate.
- No orders as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO 308 OF 2015
GICHEMI NJUGUNA.........................................PLAINTIFF
VERSUS
BRENDAN KIMANI KAMANU..............1ST DEFENDANT
MWATHI NDIBARU................................2ND DEFENDANT
RULING
(Application for substitution of the deceased plaintiff; claim being for adverse possession which can be continued on behalf of the estate of the deceased; applicant holding a grant of letters of administration ad litem; application allowed).
1. The application before me is that dated 4 September 2017 filed by one Paul Mwangi Gichemi. It is an application brought pursuant to the provisions of Order 24 Rule 3 of the Civil Procedure Rules, and in the said application, the said applicant wishes to be substituted for the plaintiff, Gichemi Njuguna, who is said to be deceased.
2. The suit itself was commenced by way of Originating Summons vide which Gichemi Njuguna sought a declaration that he is entitled to ownership of the land parcels Bahati/Kabatini Block 1/742 - 753, by way of adverse possession. That claim can be continued for the benefit of his estate.
3. In this application, the applicant has annexed a copy of a Certificate of Death, which shows that the original plaintiff died on 9 December 2015. He has also annexed a copy of a grant of letters of administration ad litem, vide which he has been granted permission to represent the estate of the deceased in this case.
4. The application is not opposed and I have no reason to decline it.
5. I do allow it and do order that the applicant be substituted in place of the deceased plaintiff and to continue this suit on behalf of the estate of the deceased plaintiff.
6. I make no orders as to costs.
7. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 18th day of April 2018.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of: -
Mr. Kibet instructed by M/s Mirugi Kariuki & Co. Advocates, for the applicant.
Ms. Cheruto holding brief for M/s Njeri Njagua & Co. Advocates for the defendant.
Court Assistant : Carlton Toroitich
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU