[2018] KEELC 1225 (KLR)
The court found that the applicant, having obtained letters of administration for the estate of the deceased plaintiff, was entitled to be substituted as plaintiff in the ongoing land dispute. The court exercised its discretion in favor of substitution, emphasizing that land matters are emotive and that the...
Source-derived case information.
- Citation
- [2018] KEELC 1225 (KLR)
- Parties
- Plaintiff: Joseph Kipchumba Kaino; Defendant: Mathayo Leshao; Applicant: James Ruto Kipchumba
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 325 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Plaintiff Due to Death
- Outcome
- application allowed
- Judges
- MN Kullow
- Legal Topics
- Substitution of Parties, Letters of Administration, Death of Litigant, Discretion of Court, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kipchumba Kaino
Plaintiff
Mathayo Leshao
Defendant
James Ruto Kipchumba
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 following the death of the original plaintiff.
- 2 Whether the application for substitution is valid or void due to alleged abatement of the suit.
Ratio Decidendi
The court found that the applicant, having obtained letters of administration for the estate of the deceased plaintiff, was entitled to be substituted as plaintiff in the ongoing land dispute. The court exercised its discretion in favor of substitution, emphasizing that land matters are emotive and that the interests of justice would be best served by allowing the suit to proceed on its merits rather than being defeated by procedural technicalities. The court relied on the provisions of Order 24 Rule 3(1) of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, and Article 159 of the Constitution, which mandates courts to administer justice without undue regard to procedural...
Court Disposition
application allowed
Orders
- The application dated 18th September, 2017 is allowed.
- James Ruto Kipchumba is substituted as plaintiff in place of the late Joseph Kipchumba Kaino.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 325 OF 2017
FORMERLY KISII ELC NO. 457 OF 2016
JOSEPH KIPCHUMBA KAINO .................................. PLAINTIFF
-VERSUS-
MATHAYO LESHAO ................................................ DEFENDANT
RULING
The Application before me is the Notice of Motion dated 18th September, 2017 which was brought under order 24 Rule 3 (1) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act in which the Applicant seeks to be substituted as the Plaintiff following the death of Joseph Kipchumba Kaino who passed on 5th September, 2016.
The application is based on the grounds that he is the administrator of the estate of the late Joseph Kipchumba Kaino and that the Respondent will not suffer any prejudice as a result of the substitution hereof. The Application was further supported by the affidavit of James Ruto Kipchumba where he depones that he is the son of the late Joseph Kipchumba Kaino who passed on 5th September, 2016 and that he has since obtained letters of administration in respect of his deceased father’s estate and he wishes to be substituted as the Plaintiff.
The Application was opposed by the Plaintiff who filed grounds of opposition and stated that the Application is void as the suit herein has already aborted and that the Application is an exercise in futility.
I have read the Application before me and the submissions made by counsel. This is an Application in which the Applicant seeks for the discretion of the court to have him substituted as the plaintiff in the matter following the death of his father on 5th September, 2016. Since this is land matter which is very emotive it shall serve the wider interest of justice if I allow the Application herein as granted by the provisions of Article 159 of the Constitution.
The upshot of the above is that I will allow the Application dated 18th September, 2017 and the costs of the same be in the cause.
DATED, SIGNED and DELIVERED in open court at NAROK on this 16th day of October, 2018
Mohammed Noor Kullow
Judge
16/10/18
In the presence of:-
Kaikai for Muema for the plaintiff
Mr Ogutu for the Defendant
CA:Chuma