[2008] KEHC 3860 (KLR)
The court held that the application for substitution of the deceased plaintiff with his legal representative was merited and granted. The prior orders of Rawal J, which allowed for revival of the suit and addressed the issue of locus, were still in force and binding on the parties, as no appeal or variation had been...
Source-derived case information.
- Citation
- [2008] KEHC 3860 (KLR)
- Parties
- Plaintiff: Mohamed Siaka Ali (deceased), substituted by Mohamed Shaibu Shosi; Defendant: Sunpalm Limited; Defendant: Issa Timany T/A Timamy & Company Advocates; Defendant: Steward Madzayo T/A Madzayo & Co. Advocates; Defendant: The Chief Land Registrar
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 663 of 2005
- Procedural Posture
- Civil Case / Ruling on Substitution of Plaintiff Due to Death
- Outcome
- application for substitution granted
- Legal Topics
- Fraudulent Land Transfer, Substitution of Parties, Land Control Board Consent, Sale of Land, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mohamed Siaka Ali (deceased), substituted by Mohamed Shaibu Shosi
Plaintiff
Sunpalm Limited
Defendant
Issa Timany T/A Timamy & Company Advocates
Defendant
Steward Madzayo T/A Madzayo & Co. Advocates
Defendant
The Chief Land Registrar
Defendant
Procedural Posture
Civil Case / Ruling on Substitution of Plaintiff Due to Death
Legal Issues
- 1 Whether the deceased plaintiff can be substituted by a legal representative in the ongoing suit.
- 2 Whether the application for substitution is time-barred given the procedural history.
- 3 Whether the prior orders of Rawal J regarding locus and revival of suit are binding on the parties.
Ratio Decidendi
The court held that the application for substitution of the deceased plaintiff with his legal representative was merited and granted. The prior orders of Rawal J, which allowed for revival of the suit and addressed the issue of locus, were still in force and binding on the parties, as no appeal or variation had been shown to have occurred. The respondent's objection on grounds of limitation was dismissed, as the procedural avenue for substitution had already been opened by the earlier court orders. The court emphasized that unless and until those orders are set aside or stayed, the parties must abide by them. Accordingly, the legal representative Mohamed Shaibu Shosi was substituted as...
Court Disposition
application for substitution granted
Orders
- The legal representative Mohamed Shaibu Shosi is substituted in place of the deceased Mohamed Siaka Ali as plaintiff.
- The plaintiff is to amend the plaint to reflect the substitution.
Full Case Text
Judgment text and source record
52 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 663 of 2005
1. Land and Environmental Law Division
2. Subject of main suit: 2. 1. Land – Fraud
2. 2. Sale of Land. LR Kilifi/Jimba/669
2. 3. Transfer of land without consent of Land Control Board
2. 4. Land registered in 1st defendants name
2. 5. Orders to declare transfer fraud, null and void.
3. Subject of application – 31 October 2007
a) That the plaintiff is now deceased
b) To substitute deceased with new plaintiff Mohamed Shaibu Shosi as legal representative
4. Held:
a) Application granted
Deceased be substituted
Obiter: The advocate Madzayo & Co. Advocates no longer exists as
principal is now judge of industrial Court. Issue of presentation
required to be dealt with.
5. Case law and statute
a) Earlier orders of Rawal J of 30. 10. 07
b) Order XXIII r 1,3 (2) and 12 Civil Procedure Rules
6. Advocates:
D.T. Mugambi of Mugambi & Co. Advocates for the plaintiff/applicant – present
D.O. Odero of Timany & Co. Advocate for 1st and 2nd respondent – present
Madzayo Mrima & Co. Advocates for the 3rd respondent – absent
A.M. Sitima for Attorney General the 4th defendant - present
MOHAMED SIAKA ALI..................................................................................PLAINTIFF
VERSUS
SUNPALM LIMITED..........................................................................1ST DEFENDANT
ISSA TIMANY T/A TIMAMY & COMPANY ADVOCATES
STEWARD MADZAYO T/A MADZAYO & CO. ADVOCATES...3RD DEFENDANT
THE CHIEF LAND REGISTRAR...................................................4TH DEFENDANT
RULING
1: Procedure
1. The main suit in this court concerns fraud in a land case. The land in question LR Kilifi/Jimba/669 was to be sold and or transferred. The plaintiff alleges there was no Land Control Board. He blamed the advocates dealing with the matter of fraudulently transferring the suit land to the 1st defendant.
2. Preliminaries in this case was dealt by Rawal J who has since been transferred to the Family Division. The issue of the plaintiffs locus arose and by her orders of 30. 10. 07 she gave orders that the plaintiff locus be dealt with.
3. The plaintiff had since passed away. Leave to review the suit was granted.
II: Application 31. 10. 07
4. By an application of 31. 10. 07 the plaintiff seeks leave to enjoin a legal representative to this matter instead of the plaintiff Mohamed Siaka Ali who has since passed away. That one Mohamed Shaikh Shosi be substituted as the plaintiff.
5. The state left it to court. The 1st and 3rd respondent did not attend the hearing of this application. The 2nd respondent opposed the application on grounds that this matter was time barred. He did not mention to this court that he has filed an appeal against Rawal J’s orders giving the plaintiffs leave to make such application to revive this suit.
III: Finding
6. There are orders of Rawal J which unless appealed against and or varied, the respondent No.2 must abide by the said orders. There is the intention to appeal. This must be perused.
7. In the meantime the application be and is hereby granted. That the legal representative Mohamed Shaibu Shosi be substituted in place of the deceased Mohamed Siaku Ali in this case. That the plaintiffs is to amend his plaint to reflect this.
8. Costs to be in the cause.
Dated this 4th day of March 2008 at Nairobi.
M.A. ANG’AWA
JUDGE
D.T. Mugambi of Mugambi & Co. Advocates for the plaintiff/applicant – present
D.O. Odero fo Timany & Co. Advocate for 1st and 2nd respondent – present
Madzayo Mrima & Co. Advocates for the 3rd respondent – absent
A.M. Sitima for Attorney General the 4th defendant - present