[2022] KEELC 15009 (KLR)
The court found that the application for substitution was not incompetent as it was properly grounded in law, supported by affidavit and annexure, and explained the delay in filing due to the time required to obtain a limited grant. The court exercised its discretion under Order 24, Rule 3(2) of the Civil Procedure...
Source-derived case information.
- Citation
- [2022] KEELC 15009 (KLR)
- Parties
- Plaintiff: Evelyn Gatune Mwiandi; Plaintiff: John Mwina Lili; Plaintiff: Alfonce Kioko Mutuku; Plaintiff: John Mwololo; Plaintiff: John Ndumbi Kaleli; Plaintiff: Musyoki Philip Mulwa; Plaintiff: Samuel Kamuli Kitonga; Plaintiff: Joseph Kivuva Kioko; Plaintiff: Kiendi Mwololo Kilinga; Plaintiff: John Makau Muindi; Plaintiff: Kasyima Mulwa Musya; Plaintiff: Muuo Ndambuki; Defendant: Kaposhi Njoroge Nakumana
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Case Civil Suit 257 of 2017
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Substitution of Deceased Plaintiff
- Outcome
- application allowed
- Judges
- MN Gicheru
- Legal Topics
- Substitution of Parties, Survival of Cause of Action, Extension of Time, Legal Representative Appointment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evelyn Gatune Mwiandi
Plaintiff
John Mwina Lili
Plaintiff
Alfonce Kioko Mutuku
Plaintiff
John Mwololo
Plaintiff
John Ndumbi Kaleli
Plaintiff
Musyoki Philip Mulwa
Plaintiff
Samuel Kamuli Kitonga
Plaintiff
Joseph Kivuva Kioko
Plaintiff
Kiendi Mwololo Kilinga
Plaintiff
John Makau Muindi
Plaintiff
Kasyima Mulwa Musya
Plaintiff
Muuo Ndambuki
Plaintiff
Kaposhi Njoroge Nakumana
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Substitution of Deceased Plaintiff
Legal Issues
- 1 Whether the applicant should be appointed as the legal representative of the deceased first plaintiff for the purposes of this suit.
- 2 Whether the application for substitution is time barred under Order 24 of the Civil Procedure Rules.
- 3 Whether the application is an abuse of court process.
Ratio Decidendi
The court found that the application for substitution was not incompetent as it was properly grounded in law, supported by affidavit and annexure, and explained the delay in filing due to the time required to obtain a limited grant. The court exercised its discretion under Order 24, Rule 3(2) of the Civil Procedure Rules to extend the time for substitution beyond one year, accepting the reasons advanced by the applicant. The court also found no evidence that the application was an abuse of court process, noting that substitution was necessary as the cause of action survived the deceased plaintiff. Accordingly, the notice of motion for substitution was allowed.
Court Disposition
application allowed
Orders
- The notice of motion dated March 9, 2021 is allowed.
- The applicant is appointed as the legal representative of the deceased first plaintiff for the purposes of this case only.
Full Case Text
Judgment text and source record
42 paragraphs
Mwiandi & 11 others v Nakumana (Environment and Land Case Civil Suit 257 of 2017) [2022] KEELC 15009 (KLR) (24 November 2022) (Ruling)
Neutral citation: [2022] KEELC 15009 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Case Civil Suit 257 of 2017
MN Gicheru, J
November 24, 2022
Between
Evelyn Gatune Mwiandi
1st Plaintiff
John Mwina Lili
2nd Plaintiff
Alfonce Kioko Mutuku
3rd Plaintiff
John Mwololo
4th Plaintiff
John Ndumbi Kaleli
5th Plaintiff
Musyoki Philip Mulwa
6th Plaintiff
Samuel Kamuli Kitonga
7th Plaintiff
Joseph Kivuva Kioko
8th Plaintiff
Kiendi Mwololo Kilinga
9th Plaintiff
John Makau Muindi
10th Plaintiff
Kasyima Mulwa Musya
11th Plaintiff
Muuo Ndambuki
12th Plaintiff
and
Kaposhi Njoroge Nakumana
Defendant
Ruling
1. This ruling is on the notice of motion dated March 9, 2021. The said motion which is under order 24, rules 3 (1) and (2), order 51,rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act is supported by three grounds, a five paragraph affidavit and one annexure.
2. The gist of all the material filed by the applicant is that she is the daughter of Everlyne Gatune Mwiaki who was the first plaintiff herein. Unfortunately, her mother died on May 13, 2019 and it was not until the November 11, 2021 when she was issued with a limited grant to enable her participate in this case. The applicant therefore prays that she be appointed the legal representative of her deceased mother for the purposes of this case only.
3. The application is opposed by the defendant who has filed three grounds of opposition namely;a.That the application is fatally incompetent and devoid of merit.b.That the application is time barred.c.That the application is an abuse of court process.
4. Only the applicant’s counsel filed written submissions on May 20, 2022. No submissions were filed by the defendant by the deadline of 90 days given on May 23, 2022.
5. I have carefully considered the application in its entirety including the affidavit, grounds in support and grounds in opposition. I find that I should consider the application while referring to the grounds of opposition. On the first ground of opposition, I find that the application is not incompetent and without merit. This is because it has all the necessary ingredients including the law under which it is based, why it was filed and the necessary material to support it including the affidavit, grounds and annexure. Secondly, I find that the application is not time barred because under order 24, rule 3(2) and the proviso thereto, this court has discretion to extend the time beyond one (1) year. In this case good reasons have been advanced as to why this application could not be filed within a year.Finally, no reason has been advanced by the defendant in any form to prove that this application is an abuse of the court process. It is in fact a necessary step because the cause of action survives the first plaintiff, and it is said that the plaintiffs occupy the suit land.For the above stated reasons, I allow the notice of motion dated March 9, 2021. Order accordingly.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 24THDAY OF NOVEMBER, 2022. MN GICHERU