[2016] KEELC 1189 (KLR)
The court found that the substitution of the deceased plaintiff had already been effected by consent and was properly on record, thus the suit had not abated. There was no evidence provided to prove that the 2nd defendant was deceased. Furthermore, the applicant failed to demonstrate that the previous suit, Nakuru...
Source-derived case information.
- Citation
- [2016] KEELC 1189 (KLR)
- Parties
- Plaintiff: Kibii Koskei; Defendant: Kiplangat Arap Mutai; Defendant: Samwel K Ngeno; Defendant: Elisheba Iminza Khayeri; Defendant: Justine Kiprotich Beimok; Applicant: 5th defendant (not named)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 241 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Oral Application for Dismissal
- Outcome
- application dismissed with costs
- Judges
- MA Silau
- Legal Topics
- Abatement of Suit, Substitution of Parties, Previous Suit Pending, Dismissal for Non Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kibii Koskei
Plaintiff
Kiplangat Arap Mutai
Defendant
Samwel K Ngeno
Defendant
Elisheba Iminza Khayeri
Defendant
Justine Kiprotich Beimok
Defendant
5th defendant (not named)
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Oral Application for Dismissal
Legal Issues
- 1 Whether the suit should be dismissed on grounds that the plaintiff and 2nd defendant are deceased and the suit has abated.
- 2 Whether the suit should be dismissed due to the existence of a previous finalized suit (Nakuru HCCC No. 145 of 2007).
Ratio Decidendi
The court found that the substitution of the deceased plaintiff had already been effected by consent and was properly on record, thus the suit had not abated. There was no evidence provided to prove that the 2nd defendant was deceased. Furthermore, the applicant failed to demonstrate that the previous suit, Nakuru HCCC No. 145 of 2007, had been finalized; on the contrary, there was evidence of a pending application for consolidation. Therefore, the grounds advanced for dismissal were unsubstantiated, and the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application by Mrs. Chesaro for dismissal of the suit is dismissed with costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 241 0F 2013
KIBII KOSKEI …………………………….………….PLAINTIFF
VERSUS
KIPLANGAT ARAP MUTAI ……..…….1ST RESPONDENT
SAMWEL K NGENO…………….…….…..2ND RESPONDENT
ELISHEBA IMINZA KHAYERI .......…….3RD RESPONDENT
JUSTINE KIPROTICH BEIMOK ….....….4TH RESPONDENT
RULING
1. On 9th June 2015, counsel for the 5th defendant, Mrs. Chesaro, orally applied in court that this suit be dismissed for two reasons :-
(i) That the plaintiff, Kibii Koske, and the 2nd defendant Samwel K. Ngeno are deceased and that the suit has abated.
(ii) That there is a previous suit, Nakuru HCCC No. 145 of 2007 which has been finalized.
2. Ms. Jennifer Ndeda, learned counsel for the plaintiff, was not ready to reply to these issues and sought time to do so. I directed that counsel do address herself on the two issues and respond on 21 October 2015.
3. On that day, Mrs. Chesaro did not appear and an affidavit was filed by Mrs. Gladys Ndeda for the plaintiff giving reasons why the suit should not be dismissed. In her affidavit, Mrs. Ndeda has stated that truly the plaintiff has died but an application to substitute had been made and the same was allowed by consent. The consent was entered into on behalf of the 5th defendant by his previous counsel on record M/s Gordon Ogolla & Associates, before Mrs. Chesaro came into the picture through a notice of change of advocates, and was filed in court on 13TH February 2013. On the alleged previous suit, that is Nakuru HCCC No. 145 of 2007, Mrs. Ndeda deposed that it is not true that the same has been finalized. She further deposed that there is in fact a pending application filed by the 5th defendant herein in that suit, seeking orders to have that case consolidated with this one. She annexed a copy of the application dated 1st February 2013, seeking the said orders.
4. I have looked at the documents presented by Mrs. Ndeda, and I do not find any merit in the application made by Mrs. Chesaro. I have seen that substitution of the deceased plaintiff was allowed by consent and his legal representative, Mr. Daniel arap Bii made the plaintiff in place of the deceased original plaintiff. On the other suit, there is no proof that the same has been finalized and I have no reason to doubt Mrs. Ndeda. On the allegation that the 2nd defendant is deceased, I am afraid that there is no proof of such.
5. Given the above reasons, I see no merit in the application made by Mrs. Chesaro. It is hereby dismissed with costs.
6. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 21st Day of January 2016.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU
In presence of -:
Ms Kipruto for the plaintiff/respondent
Mrs Chesaro for 5th defendant/applicant
N/A on part of Sheth & Wathigo for 1st - 4th defendants.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU