[2016] KEELC 1032 (KLR)
The court found that although the application for substitution was filed outside the one-year period stipulated by Order 24 Rule 4(3) of the Civil Procedure Rules, there was no opposition from the respondent, and the applicant had produced the necessary documentation (death certificate and grant of letters of...
Source-derived case information.
- Citation
- [2016] KEELC 1032 (KLR)
- Parties
- Plaintiff: Kigen Kandie; Defendant: Ruth Chepkemoi Chemuren
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 94 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application for Substitution of Defendant
- Outcome
- application for substitution allowed
- Judges
- MA Silau
- Legal Topics
- Substitution of Parties, Adverse Possession, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kigen Kandie
Plaintiff
Ruth Chepkemoi Chemuren
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Substitution of Defendant
Legal Issues
- 1 Whether Ruth Chepkemoi Chemuren should be substituted as defendant in place of the deceased Cheruiyot arap Chemuren.
- 2 Whether the application for substitution, filed outside the one-year period stipulated by Order 24 Rule 4(3), should be allowed.
Ratio Decidendi
The court found that although the application for substitution was filed outside the one-year period stipulated by Order 24 Rule 4(3) of the Civil Procedure Rules, there was no opposition from the respondent, and the applicant had produced the necessary documentation (death certificate and grant of letters of administration ad litem). The court exercised its discretion to allow the substitution in the interest of justice, noting that the delay was not opposed and could be compensated by an award of costs to the plaintiff. The court further directed that the pleadings be amended to reflect the substitution within 14 days.
Court Disposition
application for substitution allowed
Orders
- Ruth Chepkemoi Chemuren is substituted as defendant in place of Cheruiyot arap Chemuren.
- The Originating Summons and, if necessary, the body of the pleadings shall be amended to reflect the substitution within 14 days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT KERICHO
CIVIL SUIT NO. 94 OF 2009
KIGEN KANDIE…………………………………………………………….PLAINTIFF
VERSUS
RUTH CHEMUREN………………………………………….……….. DEFENDANT
RULING
(Application for substitution; application not opposed; application allowed)
The application before me is that dated 5 November 2015. It is an application said to be brought under Order 1 Rule 10 of the Civil Procedure Rules, and Sections 3 and 3A of the Civil Procedure Act. It seeks orders that Ruth Chepkemoi Chemuren be substituted for Cheruiyot arap Chemuren, the original defendant who is now deceased.
The suit itself was commenced on 26 November 2009 against the said Cheruiyot arap Chemuren. The case of the plaintiff is for adverse possession on various property. A Replying Affidavit to oppose the Originating Summons was filed by the said arap Chemuren. I have seen a consent filed on 20 January 2012 substituting Ruth Chepkemoi Chemuren for Cheruiyot arap Chemuren who was said to be deceased. I am not sure why and how this consent was filed for by that time Ruth was not holding any letters of administration for the estate of arap Chemuren. Be as it may, vide this application, it is sought to now have Ruth come into the matter in place of the late arap Chemuren.
Annexed to the supporting affidavit is a Death Certificate and a Grant of Letters of Administration ad litem issued to Ruth.
Although the application cites Order 1 Rule 10, the proper rule is actually Order 24, specifically Order 24 Rule 4, which has provisions for the substitution of a deceased defendant. I also observe that vide Order 24 Rule 4 (3), such application for substitution is supposed to be made within one year of death. The application herein is technically late. However, Mr. Mengich for the respondent did not oppose the application subject to costs for the reason that the application was filed late.
In exercise of my discretion, I will allow the application for substitution. I direct that the Originating Summons be amended to reflect the name of Ruth Chepkemoi Chemuren as the new respondent and if need be the body of the pleadings may also be amended. I direct that this be done within 14 days from today. The costs of the application will be to the plaintiff since the application was filed late.
It is so ordered.
Dated, Signed and delivered on this 8th day of April , 2016
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
PRESENT
Mr Joshua Mutai for the Defendant/Applicant.
Mr Mengich for the Plaintiff/Respondent.