[2016] KEELC 285 (KLR)
The court found that although the application for substitution was filed more than one year after the death of the 1st plaintiff, the delay was satisfactorily explained as inadvertence in collecting the Grant of Letters of Administration ad litem. The court exercised its discretion under the proviso to Order 24 Rule...
Source-derived case information.
- Citation
- [2016] KEELC 285 (KLR)
- Parties
- Plaintiff: Mbuthia Mukuru; Plaintiff: Kiplangat Ngetich; Defendant: James Gesacho; Defendant: Rosemary Wanjiru; Defendant: Kalenjin Enterprises; Defendant: Land Registrar, Nakuru; Applicant: Jemimah Waruguru Mbuthia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 149 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Deceased Party
- Outcome
- application allowed
- Judges
- MA Silau
- Legal Topics
- Substitution of Parties, Abatement of Suit, Revival of Suit, Grant of Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbuthia Mukuru
Plaintiff
Kiplangat Ngetich
Plaintiff
James Gesacho
Defendant
Rosemary Wanjiru
Defendant
Kalenjin Enterprises
Defendant
Land Registrar, Nakuru
Defendant
Jemimah Waruguru Mbuthia
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Deceased Party
Legal Issues
- 1 Whether the applicant should be substituted for the deceased 1st plaintiff under Order 24 Rule 3 of the Civil Procedure Rules, 2010.
- 2 Whether the suit should be revived after abatement due to the death of the 1st plaintiff.
- 3 Whether the delay in filing the application for substitution was excusable.
Ratio Decidendi
The court found that although the application for substitution was filed more than one year after the death of the 1st plaintiff, the delay was satisfactorily explained as inadvertence in collecting the Grant of Letters of Administration ad litem. The court exercised its discretion under the proviso to Order 24 Rule 2 to extend time for substitution, holding that the mistake of counsel should not be visited upon the applicant. As the application was unopposed and the applicant had demonstrated her legal standing as the deceased's daughter and administrator, the court allowed the application, revived the suit as regards the 1st plaintiff, and ordered substitution of the applicant in place...
Court Disposition
application allowed
Orders
- The application dated 22 September 2015 is allowed.
- The suit, which had abated in so far as the 1st plaintiff is concerned, is revived.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 149 OF 2012
MBUTHIA MUKURU ………………………….1ST PLAINTIFF
KIPLANGAT NGETICH ………...……..………2ND PLAINTIFF
VERSUS
JAMES GESACHO ……………...…….……..1ST DEFENDANT
ROSEMARY WANJIRU…………..…..……..2ND DEFENDANT
KALENJIN ENTERPRISES ………..…....…...3RD DEFENDANT
LAND REGISTRAR, NAKURU ….....…......….4TH DEFENDANT
RULING
(Application for substitution of a deceased party; application not opposed; application allowed).
1. The application before me is that dated 22 September 2015 filed by one Jemimah Waruguru Mbuthia. It is an application brought under the provisions of Order 24 Rule 3 of the Civil Procedure Rules, 2010. The applicant wants orders that she be substituted for Mbuthia Mukuru, the 1st plaintiff who is said to be deceased.
2. To the supporting affidavit, the plaintiff has averred that she is the daughter of the said Mbuthia Mukuru. Mbuthia Mukuru died on 6 August 2014 and annexed is a copy of the Certificate of Death. She deposed that she has applied for and has been issued with a Limited Grant of Letters of Administration ad litem. The Grant was signed on 24 July 2015 but she collected it on 15 September 2015 due to inadvertence. No copy of the said grant was annexed to the supporting affidavit but a further affidavit annexing the same was filed before the application could be heard.
3. Technically, following the provisions of Order 24 Rule 3 (1) and (2), an application for substitution ought to be filed within one year of death, where there are more plaintiffs than one, otherwise the suit abates in so far as the deceased plaintiff is concerned.
4. The application herein has been filed more than one year after death. However, the proviso to Order 24 Rule 2 does allow the court to extend time if good reason has been provided. The reason given for not filing the application for substitution in time is that there was inadvertence on the part of counsel in collecting the Grant Ad Litem which was signed on 24 July 2015 but collected on 15 September 2015 after the one year had lapsed. I am unable to visit the mistakes of counsel on the applicant. In any event the application is not opposed.
5. I therefore allow the application dated 22 September 2015. I order that the suit, which had abated in so far as the 1st plaintiff is concerned, be revived. I also allow the applicant to be substituted for the deceased 1st plaintiff. I direct that the plaint be amended within 14 days to reflect the substitution.
6. I make no orders as to costs.
7. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 3rd day of March, 2016.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU
In presence of :
No appearance on part of M/s Rubua Ngure & Co. Advocates for the applicant
No appearance on part of the respondents.
CA: Janet
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU