[2018] KEELC 4367 (KLR)
The court found that there was no order on record dismissing the suit for want of prosecution, rendering the application for reinstatement baseless. Furthermore, the Plaintiffs failed to provide evidence regarding the death of the 1st, 2nd, and 3rd Defendants or to demonstrate that the proposed Interested Parties...
Source-derived case information.
- Citation
- [2018] KEELC 4367 (KLR)
- Parties
- Plaintiff: Mutuku Maithya; Plaintiff: Mutisya Maithya; Plaintiff: Mutua Maithya; Plaintiff: Musyoka Maithya; Defendant: Ngila Maithya; Defendant: Muindi Maithya; Defendant: Mutiso Maithya; Defendant: The District Land Adjudication and Settlement Officer, MKS; Defendant: The District Land Registrar, MKS; Defendant: The Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 247 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Reinstate Suit and Substitute Parties
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Substitution of Parties, Suits Against Deceased Persons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutuku Maithya
Plaintiff
Mutisya Maithya
Plaintiff
Mutua Maithya
Plaintiff
Musyoka Maithya
Plaintiff
Ngila Maithya
Defendant
Muindi Maithya
Defendant
Mutiso Maithya
Defendant
The District Land Adjudication and Settlement Officer, MKS
Defendant
The District Land Registrar, MKS
Defendant
The Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Reinstate Suit and Substitute Parties
Legal Issues
- 1 Whether the suit should be reinstated for hearing on its merits.
- 2 Whether the names of the 1st, 2nd, and 3rd Defendants should be struck off and replaced with the proposed Interested Parties.
- 3 Whether a suit can be maintained or substituted against parties who were deceased at the time of filing.
Ratio Decidendi
The court found that there was no order on record dismissing the suit for want of prosecution, rendering the application for reinstatement baseless. Furthermore, the Plaintiffs failed to provide evidence regarding the death of the 1st, 2nd, and 3rd Defendants or to demonstrate that the proposed Interested Parties were their legal representatives. The court held that a suit cannot be instituted against a deceased person, and substitution is not permissible in such circumstances. Therefore, the application to reinstate the suit and substitute parties was dismissed.
Court Disposition
application dismissed
Orders
- The Application dated 10th October, 2016 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 247 OF 2012
MUTUKU MAITHYA .................................................1ST PLAINTIFF
MUTISYA MAITHYA ................................................2ND PLAINTIFF
MUTUA MAITHYA ...................................................3RD PLAINTIFF
MUSYOKA MAITHYA .............................................4TH PLAINTIFF
VERSUS
NGILA MAITHYA .....................................................1ST DEFENDANT
MUINDI MAITHYA ..................................................2ND DEFENDANT
MUTISO MAITHYA .................................................3RD DEFENDANT
THE DISTRICT LAND ADJUDICATION AND
SETTLEMENT OFFICER, MKS..............................4TH DEFENDANT
THE DISTRICT LAND REGISTRAR, MKS...........5TH DEFENDANT
THE ATTORNEY GENERAL ...................................6TH DEFENDANT
RULING
1. In the Application dated 10th October, 2016, the Plaintiffs are seeking for the following orders:
a. That this Honourable Court be pleased to reinstate this suit and hear the same on its merits.
b. That the names of the 1st, 2nd and 3rd Defendants be struck off the suit and replaced with Kamene Mutiso, Kanini Muindi (the 1st and 2nd Interested Parties) and one Mutua Ngila.
2. The Application is premised on the grounds that this suit was wrongfully earmarked for dismissal as there had been activity on the file prior to the dismissal of the suit; that the Plaintiffs herein were not represented and that the Notice to show cause why the suit should not be dismissed for want of prosecution was served on the Plaintiffs’ former advocates.
3. It is the Plaintiffs’ case that as a consequence of non-representation, the suit was dismissed.
4. The 4th, 5th and 6th Defendants’ counsel filed a Notice of Preliminary Objection in which he averred that the suit was a non-starter because it was filed against persons who were already dead and that the suit does not disclose any cause of action as against the 4th, 5th and 6th Defendants.
5. The 1st -3rd Defendants did not file any response.
6. I have gone through the record and I have not seen an order dismissing the suit for want of prosecution. The issue of reinstating the suit does not therefore arise.
7. Although the Plaintiffs are seeking for the striking out of the 1st, 2nd and 3rd Defendants and their names replaced with the 1st, 2nd and 3rd Interested Parties because the said Defendants are deceased, the Plaintiffs have not informed this court when the said Defendants died, and whether the 1st, 2nd and 3rd Interested Parties are their legal representatives.
8. If indeed the said Defendants died before the suit was filed, then the suit will be a non-starter against those Defendants and who cannot be replaced by the Interested Parties.
9. I say so because a party cannot sue a deceased Defendant and thereafter seek to replace him with another party. A suit filed against a deceased party can only be dismissed or withdrawn as against that party.
10. For those reasons, I dismiss the Application dated 10th October, 2016 with no order as to costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF MARCH, 2018.
O.A. ANGOTE
JUDGE