[2018] KEELC 4318 (KLR)
The court held that the cause of action, being a dispute over land, survives the death of the defendant. The applicant, having produced a valid death certificate and a Grant of Letters of Administration ad litem, was entitled to be substituted in place of the deceased defendant. The application was filed within one...
Source-derived case information.
- Citation
- [2018] KEELC 4318 (KLR)
- Parties
- Plaintiff: Joseph Kimani Nganga; Defendant: Fatuma Hersi Ali; Applicant: Zainab Umar Abdi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 317 of 2012
- Procedural Posture
- Civil Suit / Ruling on Substitution of Deceased Defendant
- Outcome
- application allowed
- Legal Topics
- Substitution of Parties, Survival of Actions, Letters of Administration, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kimani Nganga
Plaintiff
Fatuma Hersi Ali
Defendant
Zainab Umar Abdi
Applicant
Procedural Posture
Civil Suit / Ruling on Substitution of Deceased Defendant
Legal Issues
- 1 Whether the applicant should be substituted in place of the deceased defendant under Order 24 of the Civil Procedure Rules.
- 2 Whether the cause of action survives the death of the defendant.
Ratio Decidendi
The court held that the cause of action, being a dispute over land, survives the death of the defendant. The applicant, having produced a valid death certificate and a Grant of Letters of Administration ad litem, was entitled to be substituted in place of the deceased defendant. The application was filed within one year of the defendant's death, thus before the suit could abate under the Civil Procedure Rules. There being no opposition and the requirements for substitution having been met, the court allowed the application to ensure the estate of the deceased could be properly represented in the ongoing proceedings.
Court Disposition
application allowed
Orders
- Zainab Umar Abdi is substituted as defendant in place of Fatuma Hersi Ali (deceased).
- Zainab Umar Abdi shall continue the suit on behalf of the estate of the deceased defendant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
HCC NO.317 OF 2012
JOSEPH KIMANI NGANGA......................................PLAINTIFF
VERSUS
FATUMA HERSI ALI................................................DEFENDANT
RULING
(Application to substitute a deceased defendant; application allowed).
1. The application before me is that dated 7 November 2017 filed by one Zainab Umar Abdi, under the provisions of Order 24 of the Civil Procedure Rules. The applicant wishes to be enjoined in this suit in place of the defendant, Fatuma Hersi Ali (deceased) who is said to have died on 16 August 2017.
2. By way of background, the suit itself was commenced through a plaint which was filed on 28 August 2012. In the plaint, the plaintiff pleaded that he is the owner of the land parcel Dundori/Mugwathi Block 2/168 having purchased it in the year 1982. He pleaded that the said land was transferred to him and he has been in possession since the year 1984. He pleaded that sometimes in the year 1997, he learnt that the deceased had obtained title to the same land, which title he contended was fraudulently obtained. In the suit, he has inter alia asked for cancellation of the title held by the deceased.
3. The deceased filed a defence and counterclaim. She basically asserted that she is the one entitled to hold title to the suit land and asked for an order of eviction of the plaintiff.
4. The applicant has annexed to her supporting affidavit a Certificate of Death of the original defendant which shows that she died on 16 August 2017. She has also annexed a Grant of Letters of Administration ad litem granted in her favour.
5. The application is not opposed and on my part I see no reason to decline it. The cause of action which is over land, survives the death of the deceased, for her estate is entitled to pursue the said land. The application has also been filed within one year of death before the suit abates. I have also seen that the applicant holds letters of administration ad litem for purposes of filing or defending a suit or representing a suit on behalf of the estate of the deceased.
6. I do hereby allow the application and order that Zainab Umar Abdi be enjoined to this suit in place of the deceased defendant and that she continue the suit on behalf of the estate of the deceased defendant.
7. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 8th day of February 2018.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of : -
Mr. Ochieng Gai for the applicant.
No appearance on the part of M/s Ikua Mwangi & Co. Advocates for the plaintiff.
Court Assistant : Nelima Janepher.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU