[2022] KEELC 15357 (KLR)
The court found that the plaintiff was not to blame for the failure to substitute the deceased defendant, as the delay was due to family disagreements among the defendant's potential representatives. The court exercised its discretion under Order 25 rule 2 of the Civil Procedure Rules to allow discontinuance of the...
Source-derived case information.
- Citation
- [2022] KEELC 15357 (KLR)
- Parties
- Plaintiff: Caroline Wangui Mukuha (Suing on behalf of Peter Mukuha Mwangi as the Legal Representative ad Litem); Defendant: M’rukaria M’turuchiu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 54 of 2019
- Procedural Posture
- Environment and Land Case / Ruling on Application for Withdrawal/discontinuance After Death of Defendant
- Outcome
- Suit discontinued with no order as to costs.
- Judges
- CK Nzili
- Legal Topics
- Withdrawal of Suit, Substitution of Parties, Costs Award, Death of Defendant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caroline Wangui Mukuha (Suing on behalf of Peter Mukuha Mwangi as the Legal Representative ad Litem)
Plaintiff
M’rukaria M’turuchiu
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application for Withdrawal/discontinuance After Death of Defendant
Legal Issues
- 1 Whether the plaintiff should be allowed to withdraw or discontinue the suit after the death of the defendant.
- 2 Whether costs should be awarded to the defendant or his counsel upon discontinuance of the suit.
- 3 Whether the plaintiff was at fault for failing to substitute the deceased defendant.
Ratio Decidendi
The court found that the plaintiff was not to blame for the failure to substitute the deceased defendant, as the delay was due to family disagreements among the defendant's potential representatives. The court exercised its discretion under Order 25 rule 2 of the Civil Procedure Rules to allow discontinuance of the suit. Given the circumstances, including the absence of a living defendant and the lack of opposition to discontinuance, the court found no justification to penalize the plaintiff or award costs to the deceased defendant's counsel. The suit was therefore discontinued with no order as to costs.
Court Disposition
Suit discontinued with no order as to costs.
Orders
- The suit is discontinued under Order 25 rule 2 of the Civil Procedure Rules.
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
Mukuha (Suing on behalf of Peter Mukuha Mwangi as the Legal Representative ad Litem) v M’turuchiu (Environment & Land Case 54 of 2019) [2022] KEELC 15357 (KLR) (14 December 2022) (Ruling)
Neutral citation: [2022] KEELC 15357 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment & Land Case 54 of 2019
CK Nzili, J
December 14, 2022
Between
Caroline Wangui Mukuha (Suing on behalf of Peter Mukuha Mwangi as the Legal Representative ad Litem)
Plaintiff
and
M’rukaria M’turuchiu
Defendant
Ruling
1. On September 19, 2022 the court gave the plaintiff a last chance to file an application for substitution of the deceased defendant. The same was to be done within one month in default of which the suit shall stand dismissed for both non-compliance and non- prosecution.
2. The matter came up on October 24, 2022 but the plaintiff had not complied with the earlier orders. He sought to withdraw the suit with no order as to costs. This was opposed by counsel for the defendant given that the orders of September 19, 2022 were self-executing and had taken effect. Counsel urged for costs since the matter was part heard.
3. It is the defendant who passed on going by the information relayed to the court on April 27, 2022 by counsel appearing for him, Mr Kiruai. The plaintiff had closed their case on February 3, 2022. The reasons given for non-substitution is that of disagreements among the family members of the deceased defendant. The plaintiff cannot be blamed for that. Similarly, counsel for the defendant ideally has no client to instruct them to urge for the costs.
4. The general rule is that costs follow the event. In Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others [2013] eKLR, the Supreme Court of Kenya held that there are exceptions to the general rule. In this case, the reason(s) given to discontinue the suit are lack of a substitute to take out letters of administration for the estate of the deceased defendant and disagreements over the same by potential parties to the suit.
5. Order 25 rules 1 & 2 of the Civil Procedure Rules grant the court powers to allow for the discontinuance of a suit on an application by the plaintiff. Counsel for the deceased defendant has not opposed the application to discontinue or withdraw the claim.
6. In the circumstances the court allows for the discontinuance of the suit under order 25 rule 2 of the Civil Procedure Rules. The court finds no justification to penalize the plaintiff or award costs to the deceased defendant or his counsel on record under the circumstances.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMSTHIS 14THDAY OF DECEMBER, 2022In presence of:C/A: KananuNo appearanceHON C K NZILIELC JUDGE