[2015] KEELC 342 (KLR)
The court found that the claim for cancellation of title and registration of the properties in the name of the deceased survives his death, as any benefit from the suit would devolve to his estate. The applicants, having obtained letters of administration ad litem, are proper parties to be substituted as plaintiffs....
Source-derived case information.
- Citation
- [2015] KEELC 342 (KLR)
- Parties
- Plaintiff: Josephat Mwaura Thuo; Plaintiff: Ann Waithera Gatiba; Plaintiff: Duncan Kamau Mwangi; Defendant: Loise Wambui Kahenya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case Case160 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Deceased Plaintiff
- Outcome
- application allowed
- Judges
- MA Silau
- Legal Topics
- Substitution of Parties, Letters of Administration, Survival of Actions, Fraudulent Title, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephat Mwaura Thuo
Plaintiff
Ann Waithera Gatiba
Plaintiff
Duncan Kamau Mwangi
Plaintiff
Loise Wambui Kahenya
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Deceased Plaintiff
Legal Issues
- 1 Whether the cause of action survives the death of the original plaintiff.
- 2 Whether the applicants have proper standing to be substituted as plaintiffs.
- 3 Whether the application for substitution was made within the time prescribed by law.
Ratio Decidendi
The court found that the claim for cancellation of title and registration of the properties in the name of the deceased survives his death, as any benefit from the suit would devolve to his estate. The applicants, having obtained letters of administration ad litem, are proper parties to be substituted as plaintiffs. The application for substitution was made within the one-year period prescribed by Order 24 of the Civil Procedure Rules. There was no reason to deny the application, and the substitution was therefore allowed.
Court Disposition
application allowed
Orders
- The deceased plaintiff Josephat Mwaura Thuo is substituted with Ann Waithera Gatiba and Duncan Kamau Mwangi as plaintiffs.
- The substituted plaintiffs are at liberty to amend the plaint within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO 160 OF 2012
JOSEPHAT MWAURA THUO …………………….PLAITNIFF
VERSUS
LOISE WAMBUI KAHENYA……………………….DEFENDAT
RULING
(Application for substitution of deceased plaintiff; application allowed).
1. The application before me is that dated 11 April 2014. It seeks the substitution of the deceased plaintiff with two persons, namely Ann Waithera Gatiba and Duncan Kamau Mwangi.
2. The supporting affidavit is sworn by Duncan Kamau Mwangi. He has deposed that the plaintiff died on 24 January 2013 and thereafter, himself together with Ann Waithera Gatiba, applied for letters of administration ad litem which were issued on 16 July 2013.
3. I note that in the suit, the original plaintiff had instituted suit against the defendant asking for cancellation of the titles to the land parcels Nakuru/Bahati/329 and Nakuru/Bahati/217. It is his case that the defendant acquired title through fraud and in the suit he wanted that he be registered as proprietor of the two properties. It is my view that the said claim survives the death of the deceased as any benefit of the suit will devolve to the estate of the deceased.
4. I have seen that the applicants hold letters of administration ad litem. The application to substitute has been made within 1 year as provided by Order 24. I see no reason why I should not allow the application. It is hereby allowed. I order the deceased plaintiff to be substituted with Ann Waithera Gatiba and Duncan Kamau Mwangi and henceforth, they be deemed as the plaintiffs. They are at liberty to amend the plaint within 14 days from today.
5. I make no orders as to costs.
It is so ordered.
Dated, signed and delivered in open court at Nakuru this 11TH day of June 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU
In Presence of:-
Mr Mbiyu holding brief for Mr Kisila for applicant
CA: Violet
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU