[2024] KEELC 4421 (KLR)
The court found that although the application for substitution was filed outside the one-year period prescribed after the appellant's death, the delay of three months was not inordinate. The court exercised its discretion under Order 24 rule 3(2) Civil Procedure Rules to extend the time for substitution, emphasizing...
Source-derived case information.
- Citation
- [2024] KEELC 4421 (KLR)
- Parties
- Appellant: Philip Kirapei Kulankash; Respondent: Odongo Mark Okeyo; Respondent: The Registrar, Kajiado
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 11 of 2020
- Procedural Posture
- Environment and Land Appeal / Ruling on Notice of Motion for Substitution of Legal Representative After Death of Appellant
- Outcome
- motion allowed
- Judges
- MN Gicheru
- Legal Topics
- Substitution of Parties, Abatement of Suit, Extension of Time, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Kirapei Kulankash
Appellant
Odongo Mark Okeyo
Respondent
The Registrar, Kajiado
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Notice of Motion for Substitution of Legal Representative After Death of Appellant
Legal Issues
- 1 Whether the applicant should be substituted as the legal representative of the deceased appellant after expiry of the statutory period.
- 2 Whether the delay in filing the application for substitution is excusable and whether the court should extend time under Order 24 rule 3(2) Civil Procedure Rules.
Ratio Decidendi
The court found that although the application for substitution was filed outside the one-year period prescribed after the appellant's death, the delay of three months was not inordinate. The court exercised its discretion under Order 24 rule 3(2) Civil Procedure Rules to extend the time for substitution, emphasizing that the dispute concerns land and should be determined on its merits. The absence of prejudice to the respondent, given the immovable nature of the property, further justified allowing the application. The overriding objective of the Civil Procedure Act and Rules to facilitate substantive justice also supported the decision.
Court Disposition
motion allowed
Orders
- The motion dated 17/1/2023 is allowed.
- Costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
Kulankash v Okeyo & another (Environment and Land Appeal 11 of 2020) [2024] KEELC 4421 (KLR) (30 May 2024) (Ruling)
Neutral citation: [2024] KEELC 4421 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Appeal 11 of 2020
MN Gicheru, J
May 30, 2024
Between
Philip Kirapei Kulankash
Appellant
and
Odongo Mark Okeyo
1st Respondent
The Registrar, Kajiado
2nd Respondent
(Being an Appeal from the whole Judgment, Orders and Decree of Hon. M. Kasera issued in CMCC No. 5050 of 2017 BETWEEN PHILIP KIRAPEI KULANKASH –VERSUS- ODONGO MARK OKEYO issued on the 28th of May 2021 at Kajiado)
Ruling
1. This ruling is on the notice of motion dated 17/1/2023. The motion which is by the appellant’s legal representative seeks to have her approached as a legal representative of the deceased in this case. The motion which is brought under Order 24 rules 4 and 5 and Order 51 rule 1 Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act is based on three (3) grounds and is supported by an affidavit of the applicant which has two (2) annexures.
2. The motion is opposed by the respondent who has filed a replying affidavit dated 28/4/2023 in which he replies as follows.Firstly, the suit was abated since it is more than a year since the deceased died, having died on 16/10/2021 and the motion having been filed more than 1 year and 3 months later.Secondly, the applicant was required to file an application for grant ad litem within a year and the applicant is now out of time.Thirdly, the applicant has not explained by giving reasons as to why she had to file this motion out of time.For the above and other reasons, the respondent urges that the motion be dismissed.
3. Counsel for the parties were to file written submissions by 31/3/2024 but I did not see any such submissions.I have carefully considered the motion in its entirety including the grounds, and the affidavits by both sides and I find that it is fair and just to allow it for the following reasons.Firstly, this is a suit that concerns land and it is fair that it be heard on merit so that the parties set substantial justice.Secondly, the court has unfettered discretion under the proviso to Order 24 rule 3(2) Civil Procedure Rules to extend the time.Thirdly, even though the applicant did not give any reasons for the delay, the delay is only by three (3) months which is not inordinate.Finally, the respondent will not suffer any prejudice because the land, being immovable property will be available at the end of this litigation.For the above stated reasons, I allow the motion dated 17/1/2023. Costs in the cause.
DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 30TH DAY OF MAY 2024. M.N. GICHERUJUDGE