[2023] KEELC 17432 (KLR)
The court held that the applicants failed to comply with the mandatory requirements for substitution of a deceased defendant. Specifically, the proposed defendant did not possess letters of administration to represent the estate, and the application for substitution was made after the statutory one-year period had...
Source-derived case information.
- Citation
- [2023] KEELC 17432 (KLR)
- Parties
- Applicant: Jackson Kiogora Gitonga; Applicant: Lawrence Mbaabu; Applicant: Mary Eunice Tirindi Tersio; Applicant: Rose Ciakuthii; Applicant: Franklin Mutembei; Respondent: Jacob Muthamia Jediel; Respondent: Jackson Rugendo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 2 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Deceased Defendant
- Outcome
- application dismissed
- Judges
- CK Nzili
- Legal Topics
- Substitution of Parties, Abatement of Suit, Legal Representative Requirements, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Kiogora Gitonga
Applicant
Lawrence Mbaabu
Applicant
Mary Eunice Tirindi Tersio
Applicant
Rose Ciakuthii
Applicant
Franklin Mutembei
Applicant
Jacob Muthamia Jediel
Respondent
Jackson Rugendo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Deceased Defendant
Legal Issues
- 1 Whether the court can substitute the deceased 1st defendant with a proposed defendant who lacks letters of administration.
- 2 Whether the suit against the deceased 1st defendant has abated by operation of law due to lapse of statutory time.
- 3 Whether the Law of Succession Act and Civil Procedure Rules have been complied with for substitution.
Ratio Decidendi
The court held that the applicants failed to comply with the mandatory requirements for substitution of a deceased defendant. Specifically, the proposed defendant did not possess letters of administration to represent the estate, and the application for substitution was made after the statutory one-year period had lapsed. The court emphasized that it lacks jurisdiction to appoint a legal representative or join a party to represent the estate without authority from a probate court. Consequently, the suit against the deceased 1st defendant had abated by operation of law, and the application for substitution was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for substitution of the deceased 1st defendant is dismissed with costs.
- The suit against the 1st defendant is deemed abated by operation of law.
Full Case Text
Judgment text and source record
32 paragraphs
Gitonga & 4 others v Jediel & another (Environment & Land Case 2 of 2021) [2023] KEELC 17432 (KLR) (17 May 2023) (Ruling)
Neutral citation: [2023] KEELC 17432 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment & Land Case 2 of 2021
CK Nzili, J
May 17, 2023
Between
Jackson Kiogora Gitonga
1st Applicant
Lawrence Mbaabu
2nd Applicant
Mary Eunice Tirindi Tersio
3rd Applicant
Rose Ciakuthii
4th Applicant
Franklin Mutembei
5th Applicant
and
Jacob Muthamia Jediel
1st Respondent
Jackson Rugendo
2nd Respondent
Ruling
1. The court by an application dated March 8, 2023 is asked to allow one Royford Murithi Jediel to substitute the 1st defendant who passed on January 4, 2017. The application is based on the grounds on its face and the supporting affidavit of Jackson Kiogora Gitonga, the 1st applicant sworn on March 8, 2023. It is averred that the 1st defendant passed on January 4, 2017 and left behind no surviving spouse or heirs to his estate except the proposed defendant as a brother. The applicant averred that the cause of action has survived despite the death and therefore the court should join the proposed defendant so that the suit can be prosecuted. The application is also supported by an affidavit sworn by the said Royford Murithi Jediel on the even date confirming the contents of the applicants’ application. The application is not opposed by the respondents.
2. Order 24 Rule 4 (4) of the Civil Procedure Rules provides that where a defendant passes on, the plaintiff shall within one year from the date of death seek for the substitution of the deceased defendant with a legal representative if the cause of action survives.
3. In this suit, at paragraph 5 of the plaint, it was averred that the 1st defendant was the registered owner of LR No Igoji/Mweru/1527 as per a title deed dated May 14, 2014.
4. In the defence and counterclaim that the 2nd defendant filed on September 29, 2015, it averred that the 2nd defendant bought LR Nos 1560 and 1562 from the 1st defendant on September 2, 2009 and became the new owner. The 1st defendant filed a defence dated January 23, 2016 and confirmed both the sale and the transfer. A certificate of search dated August 24, 2015 attached to the suit also confirmed the above ownership changes.
5. It is not in dispute that 1st defendant passed on on January 4, 2017. The plaintiffs were aware of this. They ought to have moved the court before the expiry of the statutory one-year. The proposed defendant possesses no letters of grant to represent the estate of the deceased 1st defendant.
6. It is not enough for him to consent to be joined in this suit. The Law of Succession Act must be followed. This court lacks the mandate to appoint him as a legal representative and by extension join him as a party to represent the estate of the 1st defendant without the requisite authority from a probate court.
7. The suit against the 1st defendant has thus abated through the effluxion of time and by operation of the law. Unless leave is sought and granted, time extended to revive the suit against the estate of the deceased is sought and a joinder made under Order 24 Rule 7 of the Civil Procedure Rules, I find the application lacking merits. The same is dismissed with costs.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 17THDAY OF MAY 2023In presence ofC.A John PaulGikunda Anampiu for respondentHON. C.K. NZILIELC JUDGE