[2017] KEELC 3094 (KLR)
The court found that since the defendant was already deceased at the time of filing the suit and no legal representative had been substituted, the suit could not properly proceed. Upon the plaintiff's application and in the absence of any objection, the court allowed the withdrawal of the suit and ordered its...
Source-derived case information.
- Citation
- [2017] KEELC 3094 (KLR)
- Parties
- Plaintiff: Joseph Kilonzi Kivu; Defendant: Albert Mwai Ciuga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 27 of 2017
- Procedural Posture
- Land and Property Suit / Withdrawal Ruling
- Outcome
- Suit withdrawn and removed from the register.
- Legal Topics
- Withdrawal of Suit, Caution on Land, Deceased Defendant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kilonzi Kivu
Plaintiff
Albert Mwai Ciuga
Defendant
Procedural Posture
Land and Property Suit / Withdrawal Ruling
Legal Issues
- 1 Whether the suit should proceed against a deceased defendant without substitution of a legal representative.
- 2 Whether the plaintiff is entitled to withdraw the suit and have it removed from the register.
Ratio Decidendi
The court found that since the defendant was already deceased at the time of filing the suit and no legal representative had been substituted, the suit could not properly proceed. Upon the plaintiff's application and in the absence of any objection, the court allowed the withdrawal of the suit and ordered its removal from the register of civil suits at Chuka. The withdrawal was granted as a matter of procedural necessity and in accordance with the Civil Procedure Rules regarding withdrawal and substitution in the event of a party's death.
Court Disposition
Suit withdrawn and removed from the register.
Orders
- This suit is marked as withdrawn.
- The suit should be removed from the register of Civil Suits at Chuka.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 27 OF 2017
FORMERLY MERU ELC CASE NO.102 OF 2016
JOSEPH KILONZI KIVU………………..…….......…..PLAINTIFF
VERSUS
ALBERT MWAI CIUGA………………………….....DEFENDANT
RULING
1. In his plaint dated 8. 7.2016, the plaintiff seeks judgment against the defendant in the following terms:
a) That the caution placed over Land Parcel Number S. Tharaka/Tuyai/1756 be henceforth lifted.
b) Costs of this suit and interest at prevailing commercial rates
c) Any other better relief that this honourable court may deem fit & just to grant.
2. When the matter came up for directions on 15. 3.2016, Mr Wamache for the plaintiff told the court that after filing this suit in July, 2016, he and his client discovered that the defendant had died way back on 2010.
3. He expressed to court the plaintiff’s wish to withdraw this suit. He told the court that he was looking for a representative of the defendant to be sued in another suit.
4. This suit is marked as withdrawn and should be removed from the register of Civil Suits at Chuka.
5. It is so ordered.
Delivered in open court at Chuka this 15th day of March, 2017 in the presence of:
CA: Ndegwa
Wamache for the plaintiff.
P. M. NJOROGE,
JUDGE