[2023] KEELC 22396 (KLR)
The court found that although no medical evidence of incapacity was provided, a valid Power of Attorney appointing Ramadhan Shombo as attorney for the 1st Respondent was annexed to the application. The court exercised its discretion to allow substitution of the 1st Respondent with his attorney, reasoning that the...
Source-derived case information.
- Citation
- [2023] KEELC 22396 (KLR)
- Parties
- Applicant: Margaret Nduta Kamithi; Applicant: George Njenga Kamithi; Respondent: Kaingu Shombo Mweni; Respondent: Charlie Charter Limited; Respondent: The Land Registrar Kilifi; Respondent: The Hon Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Petition 16 of 2022
- Procedural Posture
- Petition / Ruling on Interlocutory Application for Substitution and Amendment
- Outcome
- Application granted.
- Judges
- FM Njoroge
- Legal Topics
- Substitution of Parties, Power of Attorney, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Nduta Kamithi
Applicant
George Njenga Kamithi
Applicant
Kaingu Shombo Mweni
Respondent
Charlie Charter Limited
Respondent
The Land Registrar Kilifi
Respondent
The Hon Attorney General
Respondent
Procedural Posture
Petition / Ruling on Interlocutory Application for Substitution and Amendment
Legal Issues
- 1 Whether the court should allow substitution of the 1st Respondent with his attorney due to incapacity.
- 2 Whether leave should be granted to amend the Answer to Petition and Cross Petition to reflect the substitution.
Ratio Decidendi
The court found that although no medical evidence of incapacity was provided, a valid Power of Attorney appointing Ramadhan Shombo as attorney for the 1st Respondent was annexed to the application. The court exercised its discretion to allow substitution of the 1st Respondent with his attorney, reasoning that the Power of Attorney sufficiently authorized the applicant to act in the proceedings. Consequently, the court also granted leave to amend the Answer to Petition and Cross Petition to reflect the new status. The absence of opposition or submissions from the other parties did not preclude the court from determining the application on its merits.
Court Disposition
Application granted.
Orders
- Ramadhan Shombo is substituted as the 1st Respondent in place of Kaingu Shombo Mweni.
- Leave is granted to amend the Answer to Petition and Cross Petition as per the draft attached to the application.
Full Case Text
Judgment text and source record
27 paragraphs
Kamithi & another (Suing as the administrators of the Estate of Stephen Kamithi Mira (Deceased)) v Mweni & 3 others (Petition 16 of 2022) [2023] KEELC 22396 (KLR) (14 December 2023) (Ruling)
Neutral citation: [2023] KEELC 22396 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Petition 16 of 2022
FM Njoroge, J
December 14, 2023
Between
Margaret Nduta Kamithi
1st Petitioner
George Njenga Kamithi
2nd Petitioner
Suing as the administrators of the Estate of Stephen Kamithi Mira (Deceased)
and
Kaingu Shombo Mweni
1st Respondent
Charlie Charter Limited
2nd Respondent
The Land Registrar Kilifi
3rd Respondent
The Hon Attorney General
4th Respondent
Ruling
1. For determination is the 1st and 2nd Respondent’s Notice of Motion dated 29th September 2023 which is seeking the following orders:1. That this honourable court be pleased to issue orders to substitute one Ramadhan Shombo as the duly appointed attorney of the 1st Respondent, Kaingu Shombo in place of the latter who has suffered a stroke;2. That this honourable court be pleased to grant the 1st Respondent leave to amend his Answer to Petition and Cross Petition to accord the new status and the amendment be automatically effected as per the attached draft without need for a fresh application for amendment;3. That the costs of this application be provided for.
2. The application is premised on the grounds set out on its face and the supporting affidavit of Ramadhan Shombo who stated that he is the 1st Respondent’s duly appointed attorney by virtue of the Power of Attorney registered on 10th July 2023. He stated the Petition herein was filed on 19th May 2022 and that the 1st Respondent his father, suffered a stroke mid-2020 and is yet to recover and for that reason the application be allowed. On 17th October 2023, the court directed that the Respondents file their replies to the Application and the Application be canvassed by way of written submissions which directions the parties did not comply with. I nevertheless will exercise my discretion to determine the motion on its merits notwithstanding that default.
Disposition 3. The Applicant herein seeks to be substituted as the 1st Respondent in place of one Kaingu Shombo Mweni. The reasons for the said substitution provided are that the said Kaingu Shombo Mweni suffered a stroke sometime in the year 2020 long before the institution of the suit. Even though the Applicant has not provided any evidence to the same, I do note that annexed to the application is a Power of Attorney which donates power to one Ramadhan Shombo generally in relation to the 1st Respondent’s interests. As such, I do not see why the substitution sought should not be allowed. Having allowed the substitution, it then follows that the prayer for amendment is justified. The application dated 29/9/2023 is hereby granted in terms of prayer nos 1 and 2 thereof. The costs of the application will be costs in the cause. The amended answer to petition and cross-petition shall be filed within 30 days of this order. The matter shall be mentioned on 15/2/24.
DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 14TH DAY OF DECEMBER 2023. MWANGI NJOROGEJUDGE, ELC, MALINDI.