[2020] KEELC 2663 (KLR)
The court found that there was no evidence of a Plaint having been filed or Summons to Enter Appearance having been issued or served on the Defendants since 2012. Without these foundational documents, there was no competent suit before the court. As such, the application to revive the suit, substitute parties, and...
Source-derived case information.
- Citation
- [2020] KEELC 2663 (KLR)
- Parties
- Plaintiff: Jacob M. Nzomo; Plaintiff: Sela Muthike Maingi; Defendant: Daudi Wambua Nyaka; Defendant: Mutio Nyaka; Defendant: John Kioko Mutua; Defendant: Samuel Njagi; Defendant: Isaac Muthama Kimilu; Defendant: Lukenya Ranching Co-operative Society Limited; Applicant: Siriel Mbithe David; Applicant: Julius Mwanza Nzomo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 391 of 2012
- Procedural Posture
- Chamber Summons / Ruling on Application to Revive Suit and Substitute Parties
- Outcome
- Application and entire suit struck out for incompetence.
- Judges
- OA Angote
- Legal Topics
- Revival of Abated Suit, Substitution of Parties, Letters of Administration, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob M. Nzomo
Plaintiff
Sela Muthike Maingi
Plaintiff
Daudi Wambua Nyaka
Defendant
Mutio Nyaka
Defendant
John Kioko Mutua
Defendant
Samuel Njagi
Defendant
Isaac Muthama Kimilu
Defendant
Lukenya Ranching Co-operative Society Limited
Defendant
Siriel Mbithe David
Applicant
Julius Mwanza Nzomo
Applicant
Procedural Posture
Chamber Summons / Ruling on Application to Revive Suit and Substitute Parties
Legal Issues
- 1 Whether the suit can be revived after abatement due to the death of the 1st Plaintiff.
- 2 Whether the Applicants can be substituted as parties as legal administrators of the deceased's estate.
- 3 Whether the Applicants are entitled to amend the Plaint and have the draft amended Plaint deemed as filed.
Ratio Decidendi
The court found that there was no evidence of a Plaint having been filed or Summons to Enter Appearance having been issued or served on the Defendants since 2012. Without these foundational documents, there was no competent suit before the court. As such, the application to revive the suit, substitute parties, and amend the Plaint was without basis. The absence of a valid suit rendered the application incompetent, and both the application and the entire suit were struck out.
Court Disposition
Application and entire suit struck out for incompetence.
Orders
- The Chamber Summons dated 16th October, 2019 is struck out.
- The entire suit is struck out for being incompetent.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 391 OF 2012
JACOB M. NZOMO....................................................................................1ST PLAINTIFF
SELA MUTHIKE MAINGI........................................................................2ND PLAINTIFF
VERSUS
DAUDI WAMBUA NYAKA.....................................................................1ST DEFENDANT
MUTIO NYAKA.......................................................................................2ND DEFENDANT
JOHN KIOKO MUTUA.........................................................................3RD DEFENDANT
SAMUEL NJAGI......................................................................................4TH DEFENDANT
ISAAC MUTHAMA KIMILU................................................................5TH DEFENDANT
LUKENYA RANCHING CO-OPERATIVE SOCIETY LIMITED....6TH DEFENDANT
AND
SIRIEL MBITHE DAVID...........................................................................1ST APPLICANT
JULIUS MWANZA NZOMO...................................................................2ND APPLICANT
RULING
1. In the Chamber Summons dated 16th October, 2019, the Applicants have sought for the following orders:
a. That the Honourable Court be pleased to revive this suit herein and the time within which the instant Application ought to have been filed to be enlarged to the date of its filing.
b. That upon granting prayer (1) hereinabove the Honourable Court be pleased to substitute the names of Siriel Mbithe David and Julius Mwanza Nzomo being the bona fide Legal Administrators of the Estate of Jacob M. Nzomo now deceased in the instant matter so as to take the positions of the 1st Plaintiff and the 2nd Plaintiff respectively.
c. That upon granting prayer (2) hereinabove the Honourable Court do grant the Applicants leave to amend the Plaint accordingly so as to capture and reflect the fresh parties and/or any other amendments that may become fit and necessary for the interest of justice.
d. That the Draft Amended Plaint annexed hereto be deemed as duly filed and properly on record.
2. The Application is supported by the Affidavit of one of the Applicant who has deponed that him, together with his Co-Applicant, are the lawful legal administrators of the Estate of the late Jacob M. Nzomo (deceased); that they obtained Letters of Administration Ad Litem in Machakos Chief Magistrate’s Court Succession Cause No. 18 of 2019 on 1st April, 2019 and that the deceased died intestate on 1st October, 2013.
3. The 1st Applicant deponed that at the time of his death, the deceased was the 1st Plaintiff and that the subject matter of the suit forms part of the Estate of the deceased; that the outcome of the suit would have a direct bearing on the Estate of the deceased and the beneficiaries thereto and that this suit has abated.
4. The 1st Applicant finally deponed that it is in the interest of Justice that the legal representatives of the deceased be made parties to the suit and that the Application should be allowed.
5. I have gone through the entire file and I have not come across either the Plaint nor the Summons to Enter Appearance. Indeed, even the alleged Draft Amended Plaint is not attached on the current Application.
6. Having not addressed this court on the issue of whether a Plaint was filed in this matter, or whether Summons to Enter Appearance were ever extracted and served on the Defendants, I find that the current Application has no “legs” to stand on. Indeed, there is no suit known in law before the court, summons having not been issued since the year 2012.
7. The Application and the entire suit is therefore struck out for being incompetent.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 8TH DAY OF MAY, 2020.
O.A. ANGOTE
JUDGE