[2019] KEELC 3754 (KLR)
The court declined to grant the orders sought by the applicant because the respondent, Joyce Nkatha Kiugu, had passed away and no substitution had been made. The court held that it would be improper to issue orders affecting the interests of a deceased party without proper substitution or withdrawal of the case...
Source-derived case information.
- Citation
- [2019] KEELC 3754 (KLR)
- Parties
- Applicant: Justus Thiora Kiugu; Applicant: David Kubania Kiugu; Applicant: Julius Kathurima Kiugu; Applicant: Ayub Mwiti Kiugu; Applicant: Edward Maitethia Kiugu; Respondent: Joyce Nkatha Kiugu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 81 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Legal Topics
- Estate Administration, Substitution of Parties, Bank Account Release
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justus Thiora Kiugu
Applicant
David Kubania Kiugu
Applicant
Julius Kathurima Kiugu
Applicant
Ayub Mwiti Kiugu
Applicant
Edward Maitethia Kiugu
Applicant
Joyce Nkatha Kiugu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the court can grant orders for release and closure of a joint bank account in the absence of substitution of a deceased respondent.
- 2 Whether proceedings can continue against a deceased party without substitution.
Ratio Decidendi
The court declined to grant the orders sought by the applicant because the respondent, Joyce Nkatha Kiugu, had passed away and no substitution had been made. The court held that it would be improper to issue orders affecting the interests of a deceased party without proper substitution or withdrawal of the case against her. The application was therefore dismissed, but the court indicated its willingness to hear the matter expeditiously upon proper procedural compliance.
Court Disposition
application dismissed
Orders
- The application dated 21.11.2018 is dismissed with no orders as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 81 OF 2015 (OS)
IN THE MATTER OF THE ESTATE OF M’IKIUGU M’MWIRICHIA alias KIUGU MWIRICHIA (DECEASED)
JUSTIN THIORA KIUGU..........................1ST APPLICANT
DAVID KUBANIA KIUGU........................2ND APPLICANT
JULIUS KATHURIMA KIUGU................3RD APPLICANT
AYUB MWITI KIUGU...............................4TH APPLICANT
EDWARD MAITETHIA KIUGU..............5TH APPLICANT
VERSUS
JOYCE NKATHA KIUGU...RESPONDENT (DECEASED)
RULING
1. In the application dated and filed on 21. 11. 2018, applicant, one Justus Thiora Kiugu seeks the following orders:
(i) Spent.
(ii) That an order be issued directing the manager ABC Bank Meru branch to release funds in the names of the joint account of Justus Thiora Kiugu and Lawrence Kiautha Arithi to one Justus Thiora Kiugu.
(iii) That the manager of ABC – Bank Meru branch to close the account held in the joint names of Justus Kiugu and Lawrence Kiautha Arithi after releasing all the funds to one Justus Thiora Kiugu.
2. The application is supported by the grounds on the face of the application and in his supporting affidavit.
3. I have perused the file. I find that one party Joyce Nkatha, the first respondent passed on (on 28. 10. 2018). She has not been substituted. I am reluctant to issue any orders in absence of substitution or withdrawal of the case against the said party.
4. I hence decline to grant any orders at this stage. However, this court is ready to hear the matter expeditiously.
5. The application is dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 25TH DAY OF APRIL, 2019
IN THE PRESENCE OF:-
C/A: Kananu
1st applicant
Kaburu for 2nd defendant/respondent
HON. LUCY. N. MBUGUA
ELC JUDGE