[2020] KEELC 863 (KLR)
The court found that the applicant failed to provide any documentary or other credible evidence to support the claim that the plaintiff, Joseph Osundwa Otipa, was incapacitated by sickness or old age to the extent that he could not prosecute the case. The court emphasized that substitution of a party due to...
Source-derived case information.
- Citation
- [2020] KEELC 863 (KLR)
- Parties
- Plaintiff: Joseph Osundwa; Defendant: Kunani Wakungwi alias Mwanasha; Defendant: Kunani Wakungwi; Defendant: Asman Osundwa Akungwi; Respondent: Simael Wesonga Eshirere; Respondent: Mohamed Omar; Respondent: Patrick Waswa Otipa; Applicant: Justine Otipa Ofisi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 177 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Plaintiff Due to Incapacity
- Outcome
- application dismissed
- Judges
- NA Matheka
- Legal Topics
- Substitution of Parties, Incapacity of Litigant, Power of Attorney, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Osundwa
Plaintiff
Kunani Wakungwi alias Mwanasha
Defendant
Kunani Wakungwi
Defendant
Asman Osundwa Akungwi
Defendant
Simael Wesonga Eshirere
Respondent
Mohamed Omar
Respondent
Patrick Waswa Otipa
Respondent
Justine Otipa Ofisi
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Plaintiff Due to Incapacity
Legal Issues
- 1 Whether the applicant should be granted authority to act on behalf of the plaintiff due to the plaintiff's alleged sickness and old age.
- 2 Whether sufficient evidence has been provided to support the plaintiff's incapacity for substitution under the law.
Ratio Decidendi
The court found that the applicant failed to provide any documentary or other credible evidence to support the claim that the plaintiff, Joseph Osundwa Otipa, was incapacitated by sickness or old age to the extent that he could not prosecute the case. The court emphasized that substitution of a party due to incapacity requires clear proof, such as medical evidence or a valid power of attorney. In the absence of such evidence, the application for substitution was deemed to lack merit. The court advised that if the applicant wishes to act on behalf of the plaintiff, he should file a power of attorney. Consequently, the application was dismissed, and costs were ordered to be in the cause.
Court Disposition
application dismissed
Orders
- The application dated 24th February 2020 is dismissed.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 177 OF 2017
JOSEPH OSUNDWA ......................................................................PLAINTIFF
VERSUS
KUNANI WAKUNGWI ALIAS MWANASHA
KUNANI WAKUNGWI
ASMAN OSUNDWA AKUNGWI ...........................................DEFENDANTS
AND
SIMAEL WESONGA ESHIRERE
MOHAMED OMAR
PATRICK WASWA OTIPA ...................................INTERESTED PARTIES
AND
JUSTINE OTIPA OFISI ..................................................................APPLICANT
RULING
The application is dated 24th February 2020 and seeks the following orders;
1. That the applicant be granted powers/authority to pursue the matter before the honourable to replace his father due to sickness and old age.
2. That also the plaintiff has lost sight of his eyes and sense of hearing due to several operations done to him.
3. That there be an order on costs.
It is based on the grounds that the cause of action revolves around determination of interests in land No. East Wanga/Eluche/808. That the plaintiff herein Joseph Osundwa Otipa is aged above 70 years and he intends to replace his son one Justine Otipa Ofisi to act for him. That land matters are emotive and ought to be determined on merit. That the plaintiff in this suit be replaced by his son one Justine Otipa Ofisi. That the matter is scheduled for hearing on 10th March, 2020 and hence need to be replaced immediately. That the applicant is willing to abide by any conditions as may be put by the court.
The defendants/respondents opposed the application dated 24th February, 2020 on the following main ground that there is no evidence documentary or otherwise to support the allegation that Joseph Osundwa Otipa the plaintiff is sick, has lost eyes, sense, is old inter alia. That the application is an abuse of the court process. That the application lacks merit.
This court has considered the application and the submissions therein. The application is based on the grounds that the plaintiff herein Joseph Osundwa Otipa is aged above 70 years and sick and he intends to replace his son one Justine Otipa Ofisi to act for him. That land matters are emotive and ought to be determined on merit. That the plaintiff in this suit be replaced by his son one Justine Otipa Ofisi. I concur with the submissions by the respondents that no evidence documentary or otherwise to support the allegation that Joseph Osundwa Otipa the plaintiff is sick. The applicant should file a power of attorney if he wishes to substitute the plaintiff. I find this application has no merit and I dismiss it. Costs to be in the cause.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 26TH OCTOBER 2020.
N.A. MATHEKA
JUDGE