[2018] KEELC 4383 (KLR)
The court found that although there was a technical defect in that the 1st defendant had already died by the time the suit was filed, the interests of justice required that the applicants be allowed to substitute the deceased defendants. This would ensure that the estates of the deceased are properly represented and...
Source-derived case information.
- Citation
- [2018] KEELC 4383 (KLR)
- Parties
- Plaintiff: Lucy Chepkemoi Mosonik (suing as the Legal Administrator of the Estate of Antony Kiprono Mosonik (Deceased)); Defendant: Khadija Haji Ahmed (deceased); Defendant: Fatuma Hersi Ali (deceased); Applicant: Zainab Abdi; Applicant: Zainab Umar Abdi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 38 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Parties
- Outcome
- application for substitution allowed
- Legal Topics
- Substitution of Parties, Adverse Possession, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Chepkemoi Mosonik (suing as the Legal Administrator of the Estate of Antony Kiprono Mosonik (Deceased))
Plaintiff
Khadija Haji Ahmed (deceased)
Defendant
Fatuma Hersi Ali (deceased)
Defendant
Zainab Abdi
Applicant
Zainab Umar Abdi
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Parties
Legal Issues
- 1 Whether the applicants should be substituted as defendants in place of the deceased original defendants.
- 2 Whether the suit can proceed against the deceased defendants after substitution.
- 3 Whether technicalities should prevent the substitution in the interests of justice.
Ratio Decidendi
The court found that although there was a technical defect in that the 1st defendant had already died by the time the suit was filed, the interests of justice required that the applicants be allowed to substitute the deceased defendants. This would ensure that the estates of the deceased are properly represented and that the matter can be determined on its merits. The court exercised its discretion under Order 24 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution to allow the substitution, emphasizing that technicalities should not override substantive justice. No order as to costs was made.
Court Disposition
application for substitution allowed
Orders
- The applicants, Zainab Abdi and Zainab Umar Abdi, are substituted as defendants in place of Khadija Haji Ahmed and Fatuma Hersi Ali (deceased).
- There will be no orders as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 38 OF 2013
LUCY CHEPKEMOI MOSONIK (suing as the Legal Administrator of the Estate of ANTONY KIPRONO MOSONIK (DECEASED)……..PLAINTIFF
VERSUS
KHADIJA HAJI AHMED ………………….1ST DEFENDANT
FATUMA HERSI ALI………………………..2ND DEFENDANT
RULING
(Application for substitution; application allowed).
1. The application before me is that dated 7 March 2017 (although it may have been meant 7 November 2017) filed by two persons, namely Zainab Abdi and Zainab Umar Abdi. The application is brought pursuant to the provisions of Order 24 of the Civil Procedure Rules. The applicants wish to be substituted for the named defendants herein, Khadija Haji Ahmed and Fatuma Hersi Ali (deceased). It is said that Khadija Haji Ahmed died on 9 January 2009, whereas Fatuma Hersi Ali, died on 16 August 2017.
2. By way of background, this suit was commenced through an Originating Summons filed on 23 September 2011. The applicant in the Originating Summons (whom for ease of reference I will refer to as the plaintiff), filed this suit on behalf of the estate of Antony Kiprono Mosonik (deceased) wishing to be declared to have obtained title by way of adverse possession to the land parcel Dundori/Mugwathi Block 2/311. The suit was resisted through a replying affidavit filed by Fatuma Hersi Ali on 14 November 2011.
3. Through this application it does appear that the 1st defendant, had actually died by the time this suit was filed. The 2nd defendant was however alive although she is now deceased. Although there could be a technicality in the suit against the 1st defendant, in the interests of justice and so that all parties can have an opportunity to present their respective cases, I do allow this application and do permit the two applicants to come on record on behalf of the deceased parties. In essence, I do allow the application for substitution and there will be no orders as to costs.
4. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 14TH day of February 2018.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of : -
No appearance on the part of M/s Ochieng Gai & Co. Advocates for the defendants/applicants.
No appearance on the part of M/s Mirugi Kariuki & Co. Advocates for the plaintiff/respondent.
Court Assistant: Nelima Janepher.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU