[2023] KEELC 18692 (KLR)
The court found that the suit against the 1st Defendant abated within one year of his death as no substitution was made and no application for extension of time was filed. Therefore, substitution could not be ordered without first reviving the suit. Further, the court held that the proceedings, judgment, and...
Source-derived case information.
- Citation
- [2023] KEELC 18692 (KLR)
- Parties
- Plaintiff: Wilson Keter Koima; Defendant: Chebet Kandie (Deceased); Defendant: Moses Chesire; Applicant: Wesley Kiprono Chebett; Applicant: Esther Kiprono Chebett
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 20 of 2014
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Ex Parte Judgment and for Substitution of Parties
- Outcome
- Application allowed in part; judgment and consequential orders set aside; liberty to apply for revival and substitution; costs to applicants.
- Judges
- EO Obaga
- Legal Topics
- Substitution of Parties, Abatement of Suit, Setting Aside Judgment, Service of Process, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Wilson Keter Koima
Plaintiff
Chebet Kandie (Deceased)
Defendant
Moses Chesire
Defendant
Wesley Kiprono Chebett
Applicant
Esther Kiprono Chebett
Applicant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Ex Parte Judgment and for Substitution of Parties
Legal Issues
- 1 Whether the applicants should be substituted in place of the 1st Defendant (deceased).
- 2 Whether the judgment and all consequential orders should be set aside due to non-disclosure of the 1st Defendant's death and false affidavits of service.
Ratio Decidendi
The court found that the suit against the 1st Defendant abated within one year of his death as no substitution was made and no application for extension of time was filed. Therefore, substitution could not be ordered without first reviving the suit. Further, the court held that the proceedings, judgment, and execution were carried out against a deceased person, with the plaintiff failing to disclose the death and the process server filing false affidavits of service. Such proceedings are a nullity and must be set aside ex debito justitiae. The court set aside the judgment and all consequential orders, granting the applicants liberty to apply for revival and substitution, and awarded costs...
Court Disposition
Application allowed in part; judgment and consequential orders set aside; liberty to apply for revival and substitution; costs to applicants.
Orders
- The judgment delivered on 26/9/2017 together with all consequential orders is set aside.
- The applicants are at liberty to bring an appropriate application seeking to revive the suit against the 1st Defendant and seek substitution thereof.
Full Case Text
Judgment text and source record
33 paragraphs
Koima v Kandie (Deceased) & another; Chebett & another (Applicant) (The legal representative’s and administration of the Estate of the Late Chebet Kandie) (Environment & Land Case 20 of 2014) [2023] KEELC 18692 (KLR) (6 July 2023) (Ruling)
Neutral citation: [2023] KEELC 18692 (KLR)
Republic of Kenya
In the Environment and Land Court at Eldoret
Environment & Land Case 20 of 2014
EO Obaga, J
July 6, 2023
Between
Wilson Keter Koima
Plaintiff
and
Chebet Kandie (Deceased)
1st Defendant
Moses Chesire
2nd Defendant
and
Wesley Kiprono Chebett
Applicant
Esther Kiprono Chebett
Applicant
The legal representative’s and administration of the Estate of the Late Chebet Kandie
Ruling
1. This is a ruling in respect of a notice of motion dated 10/2/2023 in which the Applicants seeks the following orders: -1. Spent2. That this honourable court do issue an order for substitution of the 1st Defendant with the Applicants herein.3. Spent.4. That after the hearing of the application inter-parties, the court be pleased to set aside the ex-parte judgement and decree of 26th March, 2018 and all other consequential orders against the 1st Defendant.5. That the matter be set down for hearing on priority basis.6. That costs be provided.
2. This suit was filed on 27/1/2014. The Defendants neither entered appearance nor filed defence. On 27/12/2014, the 1st Defendant died. Without disclosing the fact that the 1st Defendant had died, the plaintiff proceeded to fix the suit for formal proof. The process server filed false affidavits that he had been serving the Defendants including the 1st Defendant who was already dead.
3. Judgement was delivered on 26/9/2017. Through an application dated 8/9/2020, the plaintiff applied for execution of the decree. Once more, the process server purported to have served all the defendants including the 1st Defendant who had long died. The application was allowed on 14/10/2021.
4. The applicants therefore contend that the judgment was obtained through non-disclosure of material facts including any consequential orders are a nullity and should be set aside.
5. The Respondent contends that the process of execution has been completed and that to set aside the ex-parte judgement will only amount to an academic exercise as parties are now occupying their respective portions.
6. Parties were directed to file written submissions. The Applicants filed their submissions on 30/3/2023. The Respondent filed his submissions on 14/4/2023. I have considered the Applicants application as well as the opposition to the same by the Respondent. I have also considered the submissions by the parties.
7. There are two issues which are to be determined. The first is whether the Applicants should be substituted in place of the 1st Defendant and the second is whether the judgement and all consequential orders should be set aside.
8. On the first issue it is clear that the suit against the 1st Defendant abated within one year of his death. There was no substitution which was made. The Applicants have not applied to court to extend time for substitution. This being the case, there is no order which can be made for substitution without first seeking extension of time to revive this case. See the case of Rebecca Mijide Mungole & Another – Vs- Kenya Power and Lightning Company Ltd and 2 otehrs (2017) eKLR.
9. On the second issue, it is clear that the proceedings leading to the judgement of 26/9/2017 and the execution thereof were carried out against a deceased person. The Plaintiff who was aware of the demise of his neighbour did not disclose this to the court. The process server filed false affidavits of service. The proceedings leading to the judgement and execution are therefore a nullity and can be set aside ex debito justitiae as was stated by my brother Justice Olola in the case of Nicholas Kombe Pembe –Vs- Kenga Kombe & 3 others (2017) eKLR.
10. I consequently proceed to set aside the judgement delivered on 26/9/2017 together with all consequential orders. The Applicants are at liberty to bring an appropriate application seeking to revive the suit against the 1st Defendant and seek substitution thereof. The Respondent shall pay the costs of this application to the Applicants.It is so ordered.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 6TH DAY OF JULY, 2023. E. O. OBAGAJUDGEIn the virtual presence of;Ms. Chesire for Mr. Chepkonga for Applicant.Mr. Mogambi for Respondent.Court Assistant –LabanE. O. OBAGAJUDGE6TH JULY, 2023