[2023] KEELC 16493 (KLR)
The court found that the applicant had provided sufficient evidence of the plaintiff's death and her authority to act as administrator of the estate. The application for substitution was filed within the one-year period prescribed by Order 24 Rule 3 of the Civil Procedure Rules, as the plaintiff died on November 27,...
Source-derived case information.
- Citation
- [2023] KEELC 16493 (KLR)
- Parties
- Plaintiff: James Kariuki; Defendant: James Makori; Defendant: Evans Omwando; Defendant: Evans Ombebe; Defendant: Tom Basisi; Defendant: Mekubo Evans; Defendant: Isoe Ogechi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 368 of 2016
- Procedural Posture
- Environment and Land Case / Ruling on Application for Substitution of Deceased Plaintiff
- Outcome
- Application for substitution allowed.
- Judges
- M Sila
- Legal Topics
- Substitution of Parties, Survival of Cause of Action, Letters of Administration, Eviction Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kariuki
Plaintiff
James Makori
Defendant
Evans Omwando
Defendant
Evans Ombebe
Defendant
Tom Basisi
Defendant
Mekubo Evans
Defendant
Isoe Ogechi
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application for Substitution of Deceased Plaintiff
Legal Issues
- 1 Whether the applicant should be substituted as plaintiff in place of the deceased James N. Kariuki.
- 2 Whether the application for substitution was filed within the prescribed time under Order 24 Rule 3 of the Civil Procedure Rules.
- 3 Whether the cause of action survives the death of the plaintiff.
Ratio Decidendi
The court found that the applicant had provided sufficient evidence of the plaintiff's death and her authority to act as administrator of the estate. The application for substitution was filed within the one-year period prescribed by Order 24 Rule 3 of the Civil Procedure Rules, as the plaintiff died on November 27, 2021 and the application was filed on November 23, 2022. The cause of action, being a claim for eviction and recovery of land, survives the death of the plaintiff and can be continued by the estate. There was no opposition to the application, and the court saw no reason to deny the substitution. The court therefore allowed the application, ordered substitution of the...
Court Disposition
Application for substitution allowed.
Orders
- The deceased plaintiff, James N. Kariuki, is substituted by Wanjiku Ngige as plaintiff.
- The plaint may be amended to reflect the substitution within 14 days.
Full Case Text
Judgment text and source record
34 paragraphs
Kariuki v Makori & 5 others (Environment & Land Case 368 of 2016) [2023] KEELC 16493 (KLR) (21 March 2023) (Ruling)
Neutral citation: [2023] KEELC 16493 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisii
Environment & Land Case 368 of 2016
M Sila, J
March 21, 2023
Between
James Kariuki
Plaintiff
and
James Makori
1st Defendant
Evans Omwando
2nd Defendant
Evans Ombebe
3rd Defendant
Tom Basisi
4th Defendant
Mekubo Evans
5th Defendant
Isoe Ogechi
6th Defendant
Ruling
1. The application before me is that dated November 21, 2022 filed by one Wanjiku Ngige who wishes to substitute James N. Kariuki, the plaintiff herein, who is said to be deceased. The applicant also seeks an order of extension of time for the period of substitution, and upon the prayers being granted, she be deemed as the plaintiff suing on behalf of the estate of James N. Kariuki (deceased).
2. The supporting affidavit avers that the plaintiff died on November 27, 2021 while this suit was still pending; and that the applicant has taken out a grant of letters of administration in respect of the estate and desires to continue the suit on behalf of the estate of the deceased.
3. The application is not opposed and I have given it due consideration.
4. I observe that the plaintiff commenced this suit through a plaint which was filed on November 6, 2015. In the plaint, the plaintiff averred that the land parcel Majoge/Kanyimbo/104 (the suit land) was charged by the previous proprietors to Industrial and Commercial Development Corporation (ICDC). The loan was not paid subsequent to which ICDC sold and transferred the suit land to the plaintiff on July 15, 1978. It is pleaded that in July 2016, the plaintiff went to the suit land and found that the defendants had constructed a house therein and were tilling the land. In the suit, the plaintiff sought an order for the eviction of the defendants.
5. To this application, the applicant has annexed a copy of a Certificate of Death of the plaintiff. It shows that he died on November 27, 2021. She has also annexed a copy of a grant of letters of administration issued in the High Court at Nakuru, Succession Cause No. E64 of 2022, in the matter of the estate of James Ngigi Kariuki (deceased). From it, I can see that on September 12, 2022, the applicant was granted letters of administration to administer the estate of the deceased. The cause of action does survive the death of the deceased plaintiff and can be continued for the benefit of his estate.
6. Although in the application the applicant sought an extension of time for the period of substitution, my view is that the application is within the one-year period prescribed in order 24 rule 3. The applicant died on November 27, 2021 and this application was filed on November 23, 2022 before lapse of one year and the application is therefore within time.
7. Given the above, I do allow this application. I order that the deceased plaintiff be substituted by the applicant. The plaint can be amended accordingly to reflect this position within the next 14 days.
8. I make no orders as to costs.
9. Orders accordingly.
DATED AND DELIVERED THIS 21 DAY OF MARCH 2023JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTAT KISIIPage 2 | 2