[2017] KEELC 949 (KLR)
The court found that the application for substitution was purely procedural, as the original appellant had died and the applicant had obtained letters of administration ad litem. There was no opposition to the application. The court held that the applicant had satisfied the requirements for substitution under Order...
Source-derived case information.
- Citation
- [2017] KEELC 949 (KLR)
- Parties
- Appellant: M’BITA NTIRO; Appellant: KENNETH MUGO M’BITA; 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 2017
- Procedural Posture
- Civil Appeal / Application for Substitution of Deceased Appellant
- Outcome
- Application allowed; substitution of appellant granted.
- Judges
- FM Njoroge
- Legal Topics
- Substitution of Parties, Letters of Administration, Procedural Applications, Succession and Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’BITA NTIRO
Appellant
KENNETH MUGO M’BITA
Appellant
MBAE MWIRICHIA
Respondent
COUNTY GOVERNMENT OF THARAKA NITHI
Respondent
Procedural Posture
Civil Appeal / Application for Substitution of Deceased Appellant
Legal Issues
- 1 Whether the applicant should be joined as appellant in place of the deceased original appellant.
- 2 Whether the applicant has satisfied the requirements for substitution under the law.
Ratio Decidendi
The court found that the application for substitution was purely procedural, as the original appellant had died and the applicant had obtained letters of administration ad litem. There was no opposition to the application. The court held that the applicant had satisfied the requirements for substitution under Order 24 of the Civil Procedure Rules, and allowed the application to ensure the suit could proceed without abatement. The court further granted the plaintiff’s advocate 30 days to substitute the defunct 2nd respondent and directed service of the next date for directions to the 1st respondent’s advocate. Costs were ordered to be in the cause.
Court Disposition
Application allowed; substitution of appellant granted.
Orders
- Kenneth Mugo M’bita is joined as appellant in lieu of M’bita Ntiro (deceased).
- Plaintiff’s advocate granted 30 days to substitute the defunct 2nd respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CIVIL APPEAL 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 application is dated 13th November, 2017 and seeks orders:
1. That this honourable court be pleased to join KENNETH MUGO M’BITA as the appellant in this suit in lieu of M’BITA NTIRO (deceased).
2. That cost be in the cause.
2. The application has the following grounds:
(a) That the appellant herein is deceased having died on 6th February, 2017.
(b) That the applicant is the legal representative of the deceased appellant having been issued with letters of administration ad litem on 13th November, 2017 vide CHUKA MISC SUCC CAUSE NO. 33 OF 2017.
3. The application was prosecuted by Mr. I. C. Mugo on 14th November, 2017. Advocate Gikunda, for the defunct County Council of Meru South was in court but he did not oppose the application.
4. I find that the application is merely procedural in that it intends to bring in a new plaintiff instead of the deceased one.
5. The application is allowed.
6. Mr. I. C. Mugo, the plaintiff’s advocate is granted 30 days to have the defunct 2nd respondent substituted.
7. The plaintiff’s advocate, Mr. I.C. Mugo, is directed to serve the 1st respondents’ advocate with the next date for directions.
8. Costs shall be in the case.
9. Directions to be taken on 5. 2.2018.
10. It is so ordered.
Delivered in open court at Chuka this 14th day of July, 2017 in the presence of:
CA: Ndegwa
I.C. Mugo for the Plaintiff
Gikunda Anampiu for 2nd Respondent
P.M. NJOROGE
JUDGE