[2015] KEHC 3548 (KLR)
The court found that the applicant had satisfied the requirements for substitution under Order 24 Rule 3 of the Civil Procedure Rules, as the application was filed within the prescribed 12-month period following the death of the original petitioner. The absence of opposition from the objectors or respondents further...
Source-derived case information.
- Citation
- [2015] KEHC 3548 (KLR)
- Parties
- Applicant: Mwanatena Auma Okiti; Objector: Asman Onyanchi Wanga; Respondent: Virgina Fumwa Makongolo; Respondent: Edwin Muruka; Respondent: Johnstone Were; Respondent: Ramdhan Olalie; Respondent: Abdallah Shidanda
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause Cause361 of 2005
- Procedural Posture
- Succession Cause / Ruling on Substitution Application
- Outcome
- application allowed
- Legal Topics
- Substitution of Parties, Succession Proceedings, Deceased Litigant, Grant of Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwanatena Auma Okiti
Applicant
Asman Onyanchi Wanga
Objector
Virgina Fumwa Makongolo
Respondent
Edwin Muruka
Respondent
Johnstone Were
Respondent
Ramdhan Olalie
Respondent
Abdallah Shidanda
Respondent
Procedural Posture
Succession Cause / Ruling on Substitution Application
Legal Issues
- 1 Whether the applicant should be substituted as the legal representative of the deceased petitioner.
- 2 Whether the application for substitution was filed within the time stipulated by law.
Ratio Decidendi
The court found that the applicant had satisfied the requirements for substitution under Order 24 Rule 3 of the Civil Procedure Rules, as the application was filed within the prescribed 12-month period following the death of the original petitioner. The absence of opposition from the objectors or respondents further supported the grant of the application. The court therefore allowed the application, permitting the substitution of the applicant as the legal representative of the deceased petitioner, with costs to be in the cause.
Court Disposition
application allowed
Orders
- The Notice of Motion dated 25/02/2015 is allowed in terms of prayer 1: the applicant is substituted as the legal representative of the deceased petitioner.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESION CAUSE NO.361 OF 2005
IN THE MATTER OF THE ESTATE OF SALIM OKITI NANJIRA ..DECEASED
AND
MWANATENA AUMA OKITI ……………..…………………………..PETITIONER
VERSUS
ASMAN ONYANCHI WANGA…………………………………………OBJECTOR
AND
1. VIRGINA FUMWA MAKONGOLO …………………………….1ST RESPONDENT
2. EDWIN MURUKA ………………………………………………..2ND RESPONDENT
3. JOHNSTONE WERE ……………………………………………..3RD RESPONDENT
4. RAMDHAN OLALIE ……………………………………………..4TH RESPONDENT
5. ABDALLAH SHIDANDA …………………………………………5TH RESPONDENT
R U L I N G
The application before me is the Notice of Motion dated 25/02/2015 but filed in Court on 26/02/2015. The Applicant, who is Mwanatena Auma Okiti prays for ORDERS:-
THAT ASMAN OKITI NANJIRA, the above-named Applicant, be made a party as the legal representative of the deceased herein.
THAT costs of this application be costs in the cause.
The application is premised on 2 grounds set out on the face thereon and is also grounded on the supporting affidavit Sworn by Asman Okiti Nanjira. The main ground in support of the application is that, the Petitioner herein Mwanatena Auma Okiti is since deceased. She is said to have died on 01/10/2014. Though the deponent refers to an annexture in the form of a limited grant issued in respect of the said Mwanatena Auma Okiti no such document is annexed to the affidavit. The deceased Petitioner is said to be the biological mother of the Applicant therein.
Though the application was duly served upon the Objectors, no reply affidavits and/or grounds of Objection were filed. The application therefore proceeded unopposed.
Under Order 24 Rule 3 of the Civil Procedure Rules, a deceased party to any proceedings may be substituted within a period of 12 months unless such period is extended by an order of the Court. In this case, the Petitioner is said to have died on 01/10/2014. The application herein was filed on 26/02/2015, which is well within the time stipulated in the rules.
The application not having been opposed, I am satisfied that the applicant has made out a case for the orders sought. In the premises, the Notice of Motion dated 25/02/2015 be and is hereby allowed in terms of prayer 1 (one) thereof. Costs shall be in the cause.
Orders accordingly.
Ruling delivered, dated and signed in open Court at Kakamega this 14th day of July 2015.
RUTH N. SITATI
J U D G E
In the presence of:
N/A for Applicant
Mr. Nandwa for Akwala (present) for 2nd Objector
N/A for 1st Objector
Mr. Okoit Court Assistant