[2018] KEELC 1584 (KLR)
The court found that the applicant had provided sufficient reason for the delay in seeking substitution, namely the family's inability to agree on an administrator within the statutory period. The court exercised its discretion to revive the abated suit and allow substitution. However, since the grant of letters of...
Source-derived case information.
- Citation
- [2018] KEELC 1584 (KLR)
- Parties
- Plaintiff: Leah Wangui Mburu; Defendant: Michael W. Githumbi; Defendant: John Gitonga (deceased); Defendant: Nuclear Investments Company Limited; Applicant: Simon Peter Kihara; Applicant: David Kihara Gitonga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 356 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution and Extension of Time
- Outcome
- Application allowed with modification.
- Legal Topics
- Substitution of Parties, Abatement of Suit, Revival of Abated Suit, Letters of Administration, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leah Wangui Mburu
Plaintiff
Michael W. Githumbi
Defendant
John Gitonga (deceased)
Defendant
Nuclear Investments Company Limited
Defendant
Simon Peter Kihara
Applicant
David Kihara Gitonga
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution and Extension of Time
Legal Issues
- 1 Whether the suit against the deceased 2nd defendant should be revived and substitution allowed after abatement.
- 2 Whether sufficient reason exists to extend time for substitution beyond the statutory one year.
- 3 Whether substitution should be by both joint administrators or only one.
Ratio Decidendi
The court found that the applicant had provided sufficient reason for the delay in seeking substitution, namely the family's inability to agree on an administrator within the statutory period. The court exercised its discretion to revive the abated suit and allow substitution. However, since the grant of letters of administration ad litem was issued jointly to Simon Peter Kihara and David Kihara Gitonga, both must be substituted jointly in place of the deceased 2nd defendant, not just the applicant alone. The subject matter of the suit, being a dispute over land ownership, survives the death of the 2nd defendant. The application for substitution and extension of time was allowed on these...
Court Disposition
Application allowed with modification.
Orders
- The 2nd defendant is substituted by Simon Peter Kihara and David Kihara Gitonga jointly as joint 2nd defendants.
- No order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
HCC NO. 356 OF 2010
LEAH WANGUI MBURU.............................................................PLAINTIFF
VERSUS
MICHAEL W. GITHUMBI................................................1ST DEFENDANT
JOHN GITONGA...............................................................2ND DEFENDANT
NUCLEAR INVESTMENTS COMPANY LIMITED....3RD DEFENDANT
RULING
(Application for substitution of a deceased defendant; applicant being a joint administrator ad litem; application allowed but deceased 2nd defendant be represented jointly by the two administrators and not solely by the applicant).
1. The application before me is that dated 10 December 2015 filed by one Simon Peter Kihara, who wishes to be substituted for the deceased 2nd defendant. It is averred that the 2nd defendant died on 6 June 2013 and the applicant acknowledges that the suit has abated, although in this application he has also sought an extension of time in order to apply for substitution. The applicant has stated in his supporting affidavit that the 2nd defendant, John Gitonga Kihara, died on 6 June 2013 while this case was still pending. He has further deposed that he has acquired a grant of letters of administration ad litem which he annexed to his affidavit. He has explained that he was unable to file this application within the prescribed one year for the reason that the family of the deceased had not yet agreed, within the one year, who ought to substitute the deceased.
2. I have considered the application which is not opposed. I have seen from the Certificate of Death annexed that indeed, the 2nd defendant died on 6 June 2013. I have also seen a grant of letters of administration ad litem issued on 7 May 2014, jointly to the applicant and one David Kihara Gitonga.
3. I have gone through the pleadings which relate to a dispute over the ownership of land described as LR No. 6585/278. I have no doubt in my mind that the subject matter of the suit, survives the death of the 2nd defendant.
4. Strictly speaking, this application needed to have been filed within one year of death as provided for in Order 24 Rule 4 (3) and where no such application is filed, the suit abates as against the deceased person. However, this court has discretion to revive an abated suit under Order 24 Rule 7 (2), if the applicant adduces sufficient reason. I am persuaded by the reason given by the applicant they had not agreed who the administrator should be within one year of the death of the 2nd defendant.
5. The only point that I have not got an explanation, is why the applicant has by himself filed this application and not jointly with David Kihara Gitonga, who is noted to be a joint administrator ad litem with the applicant. I believe that the two persons should jointly come in place of the deceased 2nd defendant and not the applicant alone.
6. I therefore allow this application but order that the 2nd defendant will be substituted by the applicant and David Kihara Gitonga, jointly. The two persons henceforth, to be considered as joint 2nd defendants.
7. I make no orders as to the costs of this application.
8. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 27th day of September 2018.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of : -
Ms. Chelangat holding brief for Mr. Matiri for the plaintiff.
No appearance on the part of M/s Kariuki Mwangi & Co. for the 2nd defendant/applicant.
No appearance on the part of M/s D.K Kaburu & Co. for the 1st defendant.
No appearance on the part of M/s Kabathi & Co. for the 3rd defendant.
Court Assistant: Nelima Janepher
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU