[2020] KEHC 7915 (KLR)
The court found that the administrators of the deceased plaintiff's estate were entitled to be substituted as parties to the suit under Order 24 Rule 3(1) of the Civil Procedure Rules. The judgment delivered on 17th October 2012 had already declared the deceased (and by extension, his estate) as the absolute owner...
Source-derived case information.
- Citation
- [2020] KEHC 7915 (KLR)
- Parties
- Plaintiff: Moses Mbugua (deceased) (substituted by Michael Chege Muua and Naomi Wanjiru Munene); Defendant: Mary Nyambura Ngethe
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 920 of 2004
- Procedural Posture
- Civil Suit / Ruling on Substitution and Removal of Caution
- Outcome
- Application allowed as prayed.
- Judges
- LM Njuguna
- Legal Topics
- Substitution of Parties, Removal of Caution, Administration of Estates, Injunctive Relief
- 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
Moses Mbugua (deceased) (substituted by Michael Chege Muua and Naomi Wanjiru Munene)
Plaintiff
Mary Nyambura Ngethe
Defendant
Procedural Posture
Civil Suit / Ruling on Substitution and Removal of Caution
Legal Issues
- 1 Whether the administrators of the deceased plaintiff's estate should be substituted as parties to the suit.
- 2 Whether the caution lodged by the defendant on the suit property should be lifted in light of the prior judgment.
- 3 Whether costs should be awarded to the applicant.
Ratio Decidendi
The court found that the administrators of the deceased plaintiff's estate were entitled to be substituted as parties to the suit under Order 24 Rule 3(1) of the Civil Procedure Rules. The judgment delivered on 17th October 2012 had already declared the deceased (and by extension, his estate) as the absolute owner of land reference number Gatamaiyu/Kagaa/146 and permanently restrained the defendant from trespassing. The defendant had not challenged or appealed the judgment, and the caution she lodged on the property served no further legal purpose. The continued existence of the caution was preventing the lawful subdivision and administration of the estate. In the absence of any...
Court Disposition
Application allowed as prayed.
Orders
- Michael Chege Muua and Naomi Wanjiru Munene are substituted as plaintiffs in place of the deceased Moses Mbugua.
- The caution lodged by the defendant Mary Nyambura Ngethe on 5/11/2004 on land reference number Gatamaiyu/Kagaa/146 is to be lifted forthwith.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 920 OF 2004
MOSES MBUGUA..............................................PLAINTIFF
-VERSUS-
MARY NYAMBURA NGETHE.....................DEFENDANT
RULING
The application before the court for determination is the notice of motion dated the 14th day of October, 2019, brought by the Plaintiff/Applicant under Order 51 Rule 11 and Order 24 Rule 3(1) of the Civil Procedure Rules. The applicant has sought the following orders;
1. Michael Chege Muua and Naomi Wanjiru Munene be substituted with the plaintiff in this suit.
2. That the caution lodged by the defendant Mary Nyambura Ngethe on 5/11/2004 on land reference number Gatamaiyu/Kagaa/146 be lifted forthwith.
3. That costs of this application be awarded to the applicant.
The same is supported by the grounds set out on it’s body and on the annexed affidavit sworn by Michael Chege Mbugua, on the 14th day of October, 2019.
The deponent who is one of the administrators of the estate of Moses Mbugua, who was the plaintiff in this matter depones that, on the 5th day of November, 2004, the defendant lodged a caution on the deceased’s land reference number Gatamaiyu/Kagaa/146 as evidenced by a copy of the official search marked as annexure B in his supporting affidavit.
He avers that, on the 17th October, 2012, vide a judgment of the court delivered in this matter, the defendant was restrained by a permanent injunction from trespassing onto the deceased’s aforesaid land after the deceased was found to be the rightful proprietor of the same.
That despite the said judgment, the defendant has failed to remove the caution to enable the beneficiaries sub-divide the land among themselves since their father, who was the plaintiff died on the 17th day of June, 2008. He has thus urged the court to order the caution removed as it does not serve any useful purpose.
When the application came up for hearing on 18th February, 2020, neither the defendant nor her advocate attended court despite having been served with a hearing notice and therefore, the same proceeded exparte.
The court has considered the application and the supporting affidavit. I have also perused the original copy of the judgment delivered on the 17th day of October, 2012 in which the court found that the plaintiff in this case, who is now deceased, proved his case on a balance of probabilities and the defendant’s counter claim was dismissed. The court entered judgment for the plaintiff, deceased, and declared his personal representatives to be the absolute owners of land reference number Gatamaiyu/Kagaa/146 and found that the defendant does not have a legitimate claim to any portion of the said land.
The court further ordered that the defendant, her agents or employees be permanently restrained from trespassing on the land.
The court was not told whether the defendant has challenged this judgment in any way but in the absence of evidence to that effect, the orders that the court gave in its judgment delivered on the 17th day of October, 2012 still stands and are final.
The court has taken note of the official search marked as annexure “B” to the supporting affidavit. It shows that a caution was lodged by the defendant herein on the 5th day of November, 2004 which caution the administrators to the estate of the deceased have sought for orders to have removed so that they can be able to subdivide the land.
Having read the considered judgment delivered in this matter, this court finds no reason why the orders sought herein cannot issue. The application dated the 14th day of October, 2019, is allowed as prayed.
Costs of the application are awarded to the applicants. It is so ordered.
Dated, signed and delivered at NAIROBI this 27th day of February, 2020.
.........................
L. NJUGUNA
JUDGE
In the presence of:
..........................for the Plaintiff
.......................for the Defendant