[2017] KEELC 2023 (KLR)
The court found that, in the interests of justice, the appellant's advocate should be granted 30 days to substitute the deceased appellant, given that the advocate had been aware of the death since January 2017. The court exercised its discretion to prevent the appeal from being dismissed for want of prosecution,...
Source-derived case information.
- Citation
- [2017] KEELC 2023 (KLR)
- Parties
- Appellant: M’bita Ntiro; Respondent: Mbae Mwirichia; Respondent: County Government of Tharaka Nithi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 3 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Substitution of Deceased Appellant
- Outcome
- applicant granted extension to substitute deceased appellant
- Judges
- FM Njoroge
- Legal Topics
- Substitution of Parties, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’bita Ntiro
Appellant
Mbae Mwirichia
Respondent
County Government of Tharaka Nithi
Respondent
Procedural Posture
Civil Appeal / Ruling on Substitution of Deceased Appellant
Legal Issues
- 1 Whether the appellant should be substituted following his death to avoid dismissal of the appeal.
- 2 Whether the appellant's advocate should be granted additional time to effect substitution.
Ratio Decidendi
The court found that, in the interests of justice, the appellant's advocate should be granted 30 days to substitute the deceased appellant, given that the advocate had been aware of the death since January 2017. The court exercised its discretion to prevent the appeal from being dismissed for want of prosecution, provided the substitution is effected within the stipulated period. The court also directed that both the respondent's advocate and the deceased appellant's son notify the appellant's advocate of the orders, ensuring due process and fair notice to all parties.
Court Disposition
applicant granted extension to substitute deceased appellant
Orders
- The appellant's advocate is granted 30 days to substitute the deceased appellant.
- The respondent's advocate is to notify the appellant's advocate of the court's orders.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC [CA] CASE NO 03 OF 2017
FORMERLY MERU ELC [CA]CASE NO. 54 OF 2011
M’BITA NTIRO..................................................................1ST APPELLANT
VERSUS
MBAE MWIRICHIA.......................................................1ST RESPONDENT
COUNTY GOVERNMENT OF THARAKA NITHI........2ND RESPONDENT
RULING
1. This suit was listed for dismissal on 13. 7.2017 when Mr Kiautha Arithi, for the respondent asked the court to give the appellant’s advocate Mr. I.C. Mugo 30 days to substitute the deceased appellant.
2. In the interests of justice, I grant the appellant’s advocate 30 days to substitute the appellant. This period should be adequate since the advocate has since January, 2017 known that the appellant was deceased.
3. Mr Kiautha Arithi the respondent’s advocate is ordered to bring to the attention of the appellant’s advocate the orders issued by the court today. Concurrently the son of the deceased appellant, Kenneth Mugo M’bita, who is in court today, should inform Mr. I.C. Mugo that the court has ordered that the appellant be substituted within 30 days of today and that the parties will be back in court for directions on 23. 10. 2017.
4. It is so ordered.
Delivered in open court at Chuka this 13th day of July, 2017 in the presence of:
CA: Ndegwa
Kiautha Arithi for the Respondents
Kenneth Mugo s/o deceased appellant
P.M. NJOROGE
JUDGE