[2024] KEELC 893 (KLR)
The court found that the applicant, as the legal representative of the deceased 1st plaintiff, provided a plausible and sufficient explanation for the delay in seeking substitution, namely the protracted process of obtaining a Grant in the probate court. The court held that, in the absence of opposition from the...
Source-derived case information.
- Citation
- [2024] KEELC 893 (KLR)
- Parties
- Plaintiff: Phoebe Mueni Ithau; Plaintiff: Nara Holdings Ltd; Plaintiff: Molly Kiragu (Suing as the Administratrix of the Estate of Samuel Karagu Muchiki); Plaintiff: Mwangi Stephen Mureithi; Defendant: Nandlal and Company Limited; Defendant: Nairobi City County; Defendant: National Land Commission; Defendant: The Hon. Attorney General; Defendant: Chief Land Registrar; Interested Party: Action Team of South C Ward Association; Interested Party: Kenya Revenue Authority
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 147 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Application for Revival and Substitution After Abatement
- Outcome
- Application for revival of suit and substitution of plaintiff allowed.
- Judges
- LN Mbugua
- Legal Topics
- Abatement of Suit, Substitution of Parties, Revival of Suit, Probate Delay, Legal Representative, Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phoebe Mueni Ithau
Plaintiff
Nara Holdings Ltd
Plaintiff
Molly Kiragu (Suing as the Administratrix of the Estate of Samuel Karagu Muchiki)
Plaintiff
Mwangi Stephen Mureithi
Plaintiff
Nandlal and Company Limited
Defendant
Nairobi City County
Defendant
National Land Commission
Defendant
The Hon. Attorney General
Defendant
Chief Land Registrar
Defendant
Action Team of South C Ward Association
Interested Party
Kenya Revenue Authority
Interested Party
Procedural Posture
Environment and Land Case / Ruling on Application for Revival and Substitution After Abatement
Legal Issues
- 1 Whether the suit should be revived after abatement due to the death of the 1st plaintiff.
- 2 Whether the applicant has provided sufficient explanation for the delay in seeking substitution as legal representative.
- 3 Whether the applicant should be substituted as the plaintiff in place of the deceased.
Ratio Decidendi
The court found that the applicant, as the legal representative of the deceased 1st plaintiff, provided a plausible and sufficient explanation for the delay in seeking substitution, namely the protracted process of obtaining a Grant in the probate court. The court held that, in the absence of opposition from the respondents and in light of the provisions of Order 24 rules 4(1) and 7(2) of the Civil Procedure Rules, the application for revival of the suit and substitution of the plaintiff was merited. The court exercised its discretion to allow the application, thereby reviving the suit and substituting the applicant as plaintiff, with no order as to costs.
Court Disposition
Application for revival of suit and substitution of plaintiff allowed.
Orders
- The suit is revived.
- The applicant is substituted as plaintiff in place of the deceased 1st plaintiff.
Full Case Text
Judgment text and source record
39 paragraphs
Ithau & 3 others v Nandlal and Company Limited & 4 others; Action Team of South C Ward Association & another (Interested Parties) (Environment & Land Case 147 of 2017) [2024] KEELC 893 (KLR) (22 February 2024) (Ruling)
Neutral citation: [2024] KEELC 893 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 147 of 2017
LN Mbugua, J
February 22, 2024
Between
Phoebe Mueni Ithau
1st Plaintiff
Nara Holdings Ltd
2nd Plaintiff
Molly Kiragu (Suing as the Administratrix of the Estate of Samuel Karagu Muchiki)
3rd Plaintiff
Mwangi Stephen Mureithi
4th Plaintiff
and
Nandlal and Company Limited
1st Defendant
Nairobi City County
2nd Defendant
National Land Commission
3rd Defendant
The Hon. Attorney General
4th Defendant
Chief Land Registrar
5th Defendant
and
Action Team of South C Ward Association
Interested Party
Kenya Revenue Authority
Interested Party
Ruling
1. Before me is the application dated 23. 10. 2023 where the applicant (introducing herself as the legal representative of the 1st plaintiff) seeks orders for the revival of the suit which abated and for the substitution of the plaintiff. The applicant contends that the 1st plaintiff died on 11. 11. 2018. That the delay in substituting the 1st plaintiff was occasioned by events beyond her control in the quest to get a Grant. She only obtained the same on 8. 6.2020.
2. On 29. 11. 2023, the court gave directions on the prosecution of the application, of which the respondents were to file and serve their responses by 14. 12. 2023. None were filed.
3. I have considered the issues raised herein including the submissions of the applicant dated 11. 1.2024.
4. The provisions of Order 24 rule 4 (1) of the Civil Procedure Rules stipulate that;“Where one or two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit”.
5. Sub rule 7 (2) thereof makes provision for the process of revival of a suit which has abated. See- Muriithi Ngwenya v Gikonyo Macharia Mwangi & 2 others [2018] eKLR. In the case at hand, the applicant has given a plausible explanation that the process of getting the grant in the probate court took long to be finalized. In that regard, I am inclined to allow the application dated 23. 19. 2023 with no orders as to costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF FEBRUARY, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Muyuka for PlaintiffNjihia holding brief for Mwangi for 1st DefendantCourt assistant: Eddel