[2017] KEELC 3200 (KLR)
The court found that the applicant, having obtained a Limited Grant of Letters of Administration Ad Litem, was properly before the court seeking substitution for the deceased plaintiff. There being no opposition to the application and the requirements of the Civil Procedure Rules having been met, the court exercised...
Source-derived case information.
- Citation
- [2017] KEELC 3200 (KLR)
- Parties
- Plaintiff: Kimibei arap Tue; Defendant: Samwel Koskei; Defendant: The District Land Registrar, Nakuru; Applicant: Daniel Kipkemoi Sang
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 170 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution and Amendment of Plaint
- Outcome
- application allowed
- Judges
- MA Silau
- Legal Topics
- Substitution of Parties, Amendment of Pleadings, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimibei arap Tue
Plaintiff
Samwel Koskei
Defendant
The District Land Registrar, Nakuru
Defendant
Daniel Kipkemoi Sang
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution and Amendment of Plaint
Legal Issues
- 1 Whether the applicant should be substituted as plaintiff in place of the deceased original plaintiff.
- 2 Whether leave should be granted to amend the plaint to include new defendants and claims.
Ratio Decidendi
The court found that the applicant, having obtained a Limited Grant of Letters of Administration Ad Litem, was properly before the court seeking substitution for the deceased plaintiff. There being no opposition to the application and the requirements of the Civil Procedure Rules having been met, the court exercised its discretion to allow both the substitution and the amendment of the plaint. The court further noted that the amendments sought were necessary for the just determination of the real issues in controversy, including the addition of parties alleged to have acquired the suit property fraudulently during the pendency of the suit. The court therefore allowed the application in...
Court Disposition
application allowed
Orders
- The applicant is substituted as plaintiff in place of the deceased.
- Leave is granted to amend the plaint as per the draft annexed.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 170 OF 2012
KIMIBEI ARAP TUE ….……………………...….....……PLAINTIFF
VERSUS
SAMWEL KOSKEI……………………….....……...........1ST DEFENDANT
THE DISTRICT LAND REGISTRAR,NAKURU…...…….2ND DEFENDANT
AND
DANIEL KIPKEMOI SANG…………........…………..........APPLICANT
RULING
(Application for substitution and amendment of plaint; application not opposed; application allowed)
1. The application before me is that dated 7 January 2016 filed by one Daniel Kipkemoi Sang. It is an application seeking orders that the applicant be substituted for the plaintiff, one Kimibei arap Tue, who is now deceased. It also seeks orders to amend the plaint.
2. The suit itself was commenced by way of plaint filed on 8 June 2011. The claim of the plaintiff (now deceased) is over the ownership of the land parcel Dundori/Mugwathi Block 2/733. It was his case that he is the rightful owner of the said land and he contended that a title issued to the 1st defendant is a fraudulent title. In the suit, he sought orders for rectification of the register to reflect him as owner. The 1st defendant filed defence and counterclaim. He has refuted the allegations laid down in the plaint and has asked for a declaration that he is the proper owner of the suit land.
3. It is now said that the plaintiff has died. I have seen annexed a Certificate of Death showing that the plaintiff died on 8 January 2015. On 30 June 2015, the applicant was granted a Limited Grant of Letters of Administration Ad Litem for the estate of the deceased.
4. The applicant has also annexed a draft amended plaint. I have seen that he intends to introduce two other defendants, namely Moses Ndua Mbugua and Francis Githinga Kiarie. It is contended that the two persons purchased the suit land fraudulently while this suit was still ongoing.
5. The application is not opposed and I see no reason why I should not allow it. I do permit the applicant to come into the suit in place of the deceased plaintiff. I also do allow the applicant to amend the plaint in line with what he has annexed in his application. I direct that the amended plaint be filed within the next 14 days and be served in the usual manner.
6. I make no orders as to costs.
7. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 1st day of March 2017.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU
In presence of :
Mr. Ndung’u holding brief for Ms. Njoroge for the applicant
Mr. Aim present for the 1st defendant
No appearance on the part of the Attorney General-2nd defendant
Court Assistant : Nelima
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU