[2020] KEELC 231 (KLR)
The court found that the administrators of the deceased plaintiff's estate had properly applied for substitution within one year of the plaintiff's death, as required by Order 24 Rules 1, 2, and 3 of the Civil Procedure Rules. The cause of action survived the death of the plaintiff, and the application was unopposed...
Source-derived case information.
- Citation
- [2020] KEELC 231 (KLR)
- Parties
- Plaintiff: Meritei Ole Tinkoi (deceased, substituted by George Ndula Meritei and Koin Ene Meritei as administrators); Defendant: Kesiaya Olaisankai Mokolo; Defendant: Mailwa Group Ranch
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 926 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Substitution of Plaintiff (administrators)
- Outcome
- application allowed
- Legal Topics
- Substitution of Parties, Death of Plaintiff, Letters of Administration, Survival of Cause of Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Meritei Ole Tinkoi (deceased, substituted by George Ndula Meritei and Koin Ene Meritei as administrators)
Plaintiff
Kesiaya Olaisankai Mokolo
Defendant
Mailwa Group Ranch
Defendant
Procedural Posture
Notice of Motion / Ruling on Substitution of Plaintiff (administrators)
Legal Issues
- 1 Whether the administrators of the deceased plaintiff's estate should be substituted as plaintiffs in the ongoing suit.
Ratio Decidendi
The court found that the administrators of the deceased plaintiff's estate had properly applied for substitution within one year of the plaintiff's death, as required by Order 24 Rules 1, 2, and 3 of the Civil Procedure Rules. The cause of action survived the death of the plaintiff, and the application was unopposed by the defendants. The court relied on relevant case law confirming that substitution is appropriate in such circumstances. Consequently, the court allowed the application and ordered that the administrators be substituted as plaintiffs in the suit, with costs in the cause.
Court Disposition
application allowed
Orders
- The administrators, George Ndula Meritei and Koin Ene Meritei, are substituted as plaintiffs in place of the deceased Meritei Ole Tinkoi.
- Costs will be in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAJIADO
ELC CASE NO. 926 OF 2017
(MACHAKOS HCCC NO. 173 OF 2008)
MERITEI OLE TINKOI......................................PLAINTIFF
VERSUS
KESIAYA OLAISANKAI MOKOLO......1ST DEFENDANT
MAILWA GROUP RANCH.....................2ND DEFENDANT
RULING
What is before Court for determination is the Plaintiff’s Administrators: Notice of Motion dated 24th August, 2015 brought pursuant to Sections 1A, 1B and 3A and Order 24 Rule 3 of the Civil Procedure Rules. The said Administrators of the estate of MERITEI OLE TINKOI namely GEORGE NDULA MERITEI and KOIN ENE MERITEI seek to be substituted as Plaintiffs’ in the suit herein. The application is premised on the grounds on the face of it and the supporting affidavit of GEORGE NDULA MERITEI who is one of the Administrators to the estate of MERITEI OLE TINKOI also known as MERITEI OLE TINGOI NKAIRRAGA. He confirms that Grant of Letters of Administration Intestate in respect of the estate of MERITEI OLE TINKOI herein was issued by the High Court through Registry at Machakos in August 2015. He explains that the Deceased died on 25th August, 2014 and at the time of his death, he was the Plaintiff herein. He contends that together with his co administrator, they seek to be substituted in this suit.
The Defendants though duly served failed to oppose the instant application.
The Applicants filed their written submissions to canvass the Application.
Analysis and Determination
Upon consideration of the materials presented in respect to the instant application, the only issue for determination is whether the Applicants can be substituted as Plaintiffs in this suit.
The Applicants in their submissions reiterated their claim and relied on the decisions of PKT (Suing Under the Capacity as the Guardian Ad litem) Vs JMT & ANOR (2017) eKLR; Jackson Kiprotich Vs Agnes Moraa Omiti (2018) eKLR; and Kimani Njuguna Vs Penina Warura Mwangi & Another (2016) eKLRto buttress their averments.
Order 24 Rules 1, 2 and 3 of the Civil Procedure Rules provides that:’ 1. The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives or continues. 2. Procedure where one of several plaintiffs or defendants dies and right to sue survives. Where there are more plaintiffs or defendants than one, and any one of them dies, and where the cause of action survives or continues to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. 3. (1) Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.’
In the current scenario, the Plaintiff died on 25th August, 2014 as evident in the Death Certificate annexed to the supporting affidavit of the Applicants. The Applicants filed this application for substitution on 24th August, 2015 within one year after the death of the Plaintiff. In associating myself with the case of PKT (Suing Under the Capacity as the Guardian Ad litem) Vs JMT & ANOR (2017) eKLR,where the Court allowed an application for substitution of the Plaintiff wherein the Applicants had filed an application within one year; while relying on Order 24 Rule 1, 2 and 3 of the Civil Procedure Rules, noting that this application was unopposed, I will proceed to allow the Applicants to be substituted as Plaintiffs’ herein.
It is against the foregoing that I find the application dated the 24th August, 2015 merited and will allow it. Costs will be in the cause.
Dated Signed and Delivered at Kajiado this 7th Day of December, 2020.
CHRISTINE OCHIENG
JUDGE