[2024] KEELC 7490 (KLR)
The court found that the preliminary objection was without merit because an application for substitution of the deceased plaintiff was filed and allowed by the court. The objection was based on a factual error, as the substitution had already occurred. Furthermore, the court emphasized its discretion under Order 24...
Source-derived case information.
- Citation
- [2024] KEELC 7490 (KLR)
- Parties
- Plaintiff: John Githi Kigunda; Defendant: Stephen Kisemei Marushi; Defendant: Ahmed Ibrahim; Defendant: Mr. Malei; Defendant: Beatrice Chemeli; Defendant: Rose Akame
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 69 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- JE Gicheru
- Legal Topics
- Abatement of Suit, Substitution of Parties, Court Jurisdiction, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Githi Kigunda
Plaintiff
Stephen Kisemei Marushi
Defendant
Ahmed Ibrahim
Defendant
Mr. Malei
Defendant
Beatrice Chemeli
Defendant
Rose Akame
Defendant
Procedural Posture
Environment and Land Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit abated due to the plaintiff's death and lack of substitution within one year.
- 2 Whether the court has jurisdiction over an abated suit.
- 3 Whether the application for substitution was properly made and allowed.
Ratio Decidendi
The court found that the preliminary objection was without merit because an application for substitution of the deceased plaintiff was filed and allowed by the court. The objection was based on a factual error, as the substitution had already occurred. Furthermore, the court emphasized its discretion under Order 24 Rule 3(2) of the Civil Procedure Rules to extend the time for substitution even if the application is made after one year from the death of a party. The court reiterated the principle that it is preferable to sustain a suit and hear it on its merits, particularly in land disputes, rather than dismiss it on technical grounds. The motion was therefore dismissed with costs to the...
Court Disposition
preliminary objection dismissed
Orders
- The motion dated 15/10/2021 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
Kigunda v Marushi & 4 others (Environment & Land Case 69 of 2017) [2024] KEELC 7490 (KLR) (12 November 2024) (Ruling)
Neutral citation: [2024] KEELC 7490 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 69 of 2017
JE Gicheru, J
November 12, 2024
Between
John Githi Kigunda
Plaintiff
and
Stephen Kisemei Marushi
1st Defendant
Ahmed Ibrahim
2nd Defendant
Mr. Malei
3rd Defendant
Beatrice Chemeli
4th Defendant
Rose Akame
5th Defendant
Ruling
1. This ruling is on the notice of preliminary objection dated 15/10/2021 which posits as follows.1. That the plaintiff in this suit died in 2017. 2.That no application to substitute the deceased plaintiff was made within one year of plaintiff’s demise in compliance with order 24 rule 3 of the Civil Procedure Rules.3. That the suit has abated in so far as deceased plaintiff is concerned by operation of the law.4. That this Honourable Court lacks jurisdiction in so far as an abated suit is concerned.
2. The motion is opposed by the plaintiff who states that an application dated 30/5/2018 seeking the appointment of a legal representative to the estate of the deceased was allowed by the court on 18/3/2019. This motion is therefore frivolous and vexatious and should be dismissed.
3. I have carefully considered the motion in its entirety and I find that it has no merit for two reasons. Firstly, an application dated 30/5/2018 was filed in court on 4/6/2018. The application sought to substitute John Githi Kigunda with Jonathan Karuga Kigunda. The said application was allowed on 18/3/2019. The motion dated 15/10/2021 is therefore based on a fallacy. Secondly, under order 24 rule 3 (2) at the proviso, the court has discretion to extend time even if an application is made more than a year after the death of a party. As stated in the ruling dated 2/12/2021 the court would rather sustain a suit than dismiss it. Dismissing a suit concerning land before hearing the parties is neither fair nor just. Finally, this suit has now been pending in court since 8/12/2010 which is almost 14 years. Both parties have been reluctant to proceed making applications which only serve to delay the expeditious conclusion of this suit on merit. I dismiss the motion dated 15/10/2021 with costs to the respondent.It is so ordered.
DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY 12TH DAY OF NOVEMBER 2024. M.N. GICHERUJUDGE