[2017] KEHC 6865 (KLR)
The court found that the delay in seeking substitution of the deceased plaintiff was adequately explained and that no prejudice would be occasioned to the defendants by allowing the substitution. The court exercised its discretion to enlarge time and permit Jane Nyambura Mwangi to be substituted in place of the...
Source-derived case information.
- Citation
- [2017] KEHC 6865 (KLR)
- Parties
- Plaintiff: Jane Wambui Karanja; Plaintiff: Mwangi Mbogo (deceased); Plaintiff: James Kamau Thuo; Plaintiff: Kamau Njuguna; Plaintiff: Samuel Munoru; Plaintiff: Joseph Mwangi Maina; Defendant: New Kenya Co-operative Creameris Co Ltd; Defendant: Maragua County Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 531 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Substitution and Enlargement of Time
- Outcome
- application allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Substitution of Parties, Enlargement of Time, Land Dispute, Transfer of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wambui Karanja
Plaintiff
Mwangi Mbogo (deceased)
Plaintiff
James Kamau Thuo
Plaintiff
Kamau Njuguna
Plaintiff
Samuel Munoru
Plaintiff
Joseph Mwangi Maina
Plaintiff
New Kenya Co-operative Creameris Co Ltd
Defendant
Maragua County Council
Defendant
Procedural Posture
Civil Case / Ruling on Application for Substitution and Enlargement of Time
Legal Issues
- 1 Whether the court should enlarge time to allow substitution of a deceased plaintiff with a legal representative.
- 2 Whether the delay in seeking substitution prejudices the defendants.
- 3 Whether the matter should be transferred to the Environment and Land Court.
Ratio Decidendi
The court found that the delay in seeking substitution of the deceased plaintiff was adequately explained and that no prejudice would be occasioned to the defendants by allowing the substitution. The court exercised its discretion to enlarge time and permit Jane Nyambura Mwangi to be substituted in place of the deceased Mwangi Mbogo. The court further noted that the matter is a land dispute and directed that the case be transferred to the Environment and Land Court Division for hearing and determination. Each party was ordered to bear their own costs.
Court Disposition
application allowed
Orders
- Time for substitution is enlarged.
- Jane Nyambura Mwangi is substituted in place of Mwangi Mbogo (deceased) as plaintiff.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 531 OF 2005
JANE WAMBUI KARANJA ……..........................……......…1ST PLAINTIFF
MWANGI MBOGO ………………..........................….......….2ND PLAINTIFF
JAMES KAMAU THUO ………….........................…........…3RD PLAINTIFF
KAMAU NJUGUNA …………………............................……4TH PLAINTIFF
SAMUEL MUNORU …………….….................................….5TH PLAINTIFF
JOSEPH MWANGI MAINA ………........................…...……6TH PLAINTIFF
VERSUS
NEW KENYA CO-OPERATIVE CREAMERIS CO LTD…1ST DEFENDANT
MARAGUA COUNTY COUNCIL …..........................……2ND DEFENDANT
RULING
This is an application by way of Notice of Motion dated 20th April, 2015 under Order 50 Rule 6 and Order 24 Rule 3 (1) and (2) of the Civil Procedure rules to enlarge time and allow the substitution of one Mwangi Mbogo now deceased, with Jane Nyambura Mwangi to facilitate the hearing and determination of the suit.
Upon that enlargement of time, and subject to the order thereunder, the court do allow Jane Nyambura Mwangi to take the place of the said Mwangi Mbogo deceased who was one of the plaintiffs herein. The reasons for seeking those orders are set out on the face of the application and there is also an affidavit sworn by Jane Nyambura Mwangi.
The defendants opposed the application by way of grounds of opposition mainly on the grounds that, the application was filed late and offends the provisions of Order 25 Rule 3 (2) of the Civil Procedure Rules. Counsel have filed submissions which I have read.
The substitution sought is intended, not to prejudice the position of the defendants, but to facilitate the determination of the issues that are central in the whole dispute. Looking at the material presented by the parties, no prejudice has been alleged shall be visited upon the defendants if the order sought is granted. The delay in seeking the substitution has been accounted for, and this court is not inclined to lock out any party.
Accordingly the application is allowed and each party will bear their own costs.
I note that this matter relates to a land dispute and the case should now be transferred to the Environment and Land Court Division for hearing and determination. Orders accordingly.
Dated, signed and delivered at Nairobi this 29th Day of March, 2017.
A. MBOGHOLI MSAGHA
JUDGE