[2016] KEHC 6650 (KLR)
The court held that since the applicant holds a valid limited grant of Administration Ad litem for the purpose of substitution in this case, and no other substantive reason has been advanced to oppose the substitution, the application must be allowed. The mere pendency of an application for revocation of the grant...
Source-derived case information.
- Citation
- [2016] KEHC 6650 (KLR)
- Parties
- Plaintiff: Jairus Kariuki Mbicho; Defendant: Emmanuel Kariuki Gichacha; Applicant: Elizabeth Wairimu Kariuki
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 109 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Plaintiff Due to Death
- Outcome
- application allowed
- Judges
- BN Olao
- Legal Topics
- Substitution of Parties, Grant of Administration Ad Litem, Succession Proceedings, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jairus Kariuki Mbicho
Plaintiff
Emmanuel Kariuki Gichacha
Defendant
Elizabeth Wairimu Kariuki
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Plaintiff Due to Death
Legal Issues
- 1 Whether the applicant should be substituted as plaintiff in place of the deceased original plaintiff.
- 2 Whether the existence of a pending application for revocation of grant affects the applicant's right to be substituted.
Ratio Decidendi
The court held that since the applicant holds a valid limited grant of Administration Ad litem for the purpose of substitution in this case, and no other substantive reason has been advanced to oppose the substitution, the application must be allowed. The mere pendency of an application for revocation of the grant does not invalidate the grant or the applicant's standing to be substituted. Until the grant is revoked, it remains valid and effective, and the court is bound to recognize it. The court also noted the familial relationship between the parties and directed that each party bear their own costs.
Court Disposition
application allowed
Orders
- The applicant, Elizabeth Wairimu Kariuki, is substituted as plaintiff in place of the deceased Jairus Kariuki Mbicho.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
ELC CASE NO. 109 OF 2014
JAIRUS KARIUKI MBICHO……………….…PLAINTIFF
VERSUS
EMMANUEL KARIUKI GICHACHA…..…....DEFENDANT
ELIZABETH WAIRIMU KARIUKI……....…..APPLICANT
RULING
The applicant herein ELIZABETH WAIRIMU KAIRUKI has by her application dated 15th June 2015 and filed herein on 16th June 2015 sought the following orders:-
That the Honourable Court be pleased to substitute the plaintiff herein with ELIZABETH WAIRIMU KARIUKI.
That costs be in the cause.
The basis of this application as can be gleaned from the grounds therein and the applicant’s supporting affidavit is that the plaintiff here JAIRUS KARIUKI MBICHO now deceased who was her father died on 11th December 2014 and is survived by the applicant who is desirous of proceeding with the suit herein and has accordingly obtained a grant of Administration Ad litem a copy of which was attached to her application (annexture EWK-2).
The application is opposed and in his replying affidavit, the respondent EMMANUEL KARIUKI GICHACHA has deponed that he has already filed a summons for the revocation of the grant issued to the applicant in Kerugoya High Court Succession Cause No. 163 of 2015 because the applicant conceded facts to the Court that issued the said grant. Copies of that application for revocation of grant together with the supporting affidavit were annexed –EKG 1.
The application was canvassed orally before me with Mr. Chomba for the applicant asking the Court to rely on her supporting affidavit. The respondent’s response basically is that this application should be dismissed pending his application for revocation which was coming up for hearing on 8th March 2016.
I do not see any valid reason why I should not allow this application. As matters stand now, the applicant has been granted a limited grant ad litem for purposes of substitution in this case. Before that grant is revoked, it remains a valid grant which this Court must respect. No other reason other than that has been put forward as to why I should not allow the substitution.
I accordingly allow the applicant’s Notice of Motion dated 15th June 2015 and filed herein on 16th June 2016. As the parties are siblings, each party shall meet their own costs.
It is so ordered.
B.N. OLAO
JUDGE
26TH FEBRUARY, 2016
Ruling delivered this 26th day of February, 2016 in open Court.
Ms Thungu for Mr. Chomba for Applicant present
Respondent present in person.
B.N. OLAO
JUDGE
26TH FEBRUARY, 2016