[2017] KEELC 1964 (KLR)
The court found that the applicant, having been granted letters of administration ad litem, is the proper person to substitute the deceased plaintiff in the suit. The substitution is necessary to enable the continuation and determination of the matter. There was no objection from the respondent, and the court was...
Source-derived case information.
- Citation
- [2017] KEELC 1964 (KLR)
- Parties
- Applicant: George Ouoma Tharoge (substituting Tharoge Kathethi, deceased); Respondent: Milton Achieng Odhuk alias Ochieng Odhuk
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 84 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Substitution of Plaintiff Due to Death
- Outcome
- application allowed
- Judges
- GMA Ongondo
- Legal Topics
- Substitution of Parties, Letters of Administration, Estate Representative, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Ouoma Tharoge (substituting Tharoge Kathethi, deceased)
Applicant
Milton Achieng Odhuk alias Ochieng Odhuk
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Substitution of Plaintiff Due to Death
Legal Issues
- 1 Whether the applicant, as the legal representative of the deceased plaintiff, should be substituted as plaintiff in the suit.
- 2 Whether the amended plaint should be deemed as duly filed and served upon substitution.
- 3 Whether any party would suffer prejudice by the substitution.
Ratio Decidendi
The court found that the applicant, having been granted letters of administration ad litem, is the proper person to substitute the deceased plaintiff in the suit. The substitution is necessary to enable the continuation and determination of the matter. There was no objection from the respondent, and the court was satisfied that no party would suffer prejudice by the substitution. The court therefore allowed the application for substitution and ordered the amended plaint to be deemed duly filed and served, with directions for the subsequent pleadings and pre-trial steps.
Court Disposition
application allowed
Orders
- Applicant George Ouoma Tharoge is substituted as plaintiff in place of Tharoge Kathethi (deceased).
- The draft annexed amended plaint is deemed as duly filed and served.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MIGORI
ELC NO. 84 OF 2017
MICHEAL FRANCIS OKUMU
THAROGE KATHETHI….…………..……….PLAINTIFF/APPLICANTS
VERSUS
MILTON ACHIENG ODHUK
Alias OCHIENG ODHUK.…………........DEFENDANT/RESPONDENTS
RULING
1. A Notice of Motion dated 18/7/17 brought under Order 8 Rule 3 of the Civil Procedure Rules) AND Order 24 Rules 1, 2 & 3 of the Civil Procedure Rules Section 1A, 1B & 3A of the Civil Procedure Act by the plaintiff/applicant seeks the following orders;-
a.The court be pleased to order that the applicant GEORGE OUMA THAROGE, being the duly appointed legal representatives of the Estate of Tharoge Kathethi (deceased) be substituted as the plaintiff thereby substituted as the plaintiff in this suit thereby substituting THAROGE KATHETHI.
b.That upon the grant of prayer 1 above, the Draft annexed amended plaint be deemed as duly file and served.
c.The cost of this application be in cause.
2. The grounds of Notice of Motion are on the face of it with annexed documents. The grounds are;-
a.That the applicant herein GEORGE OUMA THAROGE was granted letters of Administration Ad litem to the estate of THAROGE KATHETHI (deceased) on 6th day of July 2016.
b.That the plaintiff is deceased and can no longer pursue the claim herein and thus it therefore desirable that GEORGE OUMA THAROGE be substituted in this suit as plaintiff to enable her prosecute this suit to final determination.
c.That the original plaintiff cannot continue to prosecute the suit herein since the same passed on thus the necessary to carry out substitution.
d.That no party will suffer any prejudice should the orders sought be grant as it is in the interest of justice that the said orders do issue.
3. Mr. Ochwal for the defendant/respondent has no objection to the Notice of Motion.
4. I find the orders sought in the Notice of Motion meritorious. I allow the Notice of Motion accordingly.
5. The defendant to file and serve amended defence within 14 days from the date hereof.
6. The plaintiff to file and serve a reply, if any within 14 days to the date of service of amended defence.
7. Mention on 20/9/2017 for pre-trial directions.
DELIVERED, SIGNED and DATED in open court at MIGORI this 20thday of July 2017.
G. M. A. ONGONDO
JUDGE
In the presence of :-
Mr. Omotto counsel for the Plaintiff/Applicant
Mr. Ochwal counsel for the Defendant
Tom – Court Assistant