[2021] KEELC 2629 (KLR)
The court held that since the suit was filed solely by the deceased, only a person who has obtained letters of administration in respect of the deceased's estate can be substituted as plaintiff. The applicant's status as a joint owner of the property does not entitle him to substitution without following the...
Source-derived case information.
- Citation
- [2021] KEELC 2629 (KLR)
- Parties
- Plaintiff: Marcella Omwenga (Deceased); Applicant: Nahson Kebwaro Omwenga; Defendant: Joseph K Ngiria; Defendant: Estate of Jason Atinda Ouko (Deceased)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1028 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection Regarding Substitution of Plaintiff
- Outcome
- preliminary objection upheld; substitution application struck out with costs to 2nd respondent
- Judges
- EO Obaga
- Legal Topics
- Locus Standi, Substitution of Parties, Letters of Administration, Joint Ownership, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marcella Omwenga (Deceased)
Plaintiff
Nahson Kebwaro Omwenga
Applicant
Joseph K Ngiria
Defendant
Estate of Jason Atinda Ouko (Deceased)
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection Regarding Substitution of Plaintiff
Legal Issues
- 1 Whether the applicant can be substituted as plaintiff without obtaining letters of administration for the deceased estate.
- 2 Whether joint ownership of the suit property entitles the applicant to substitution without succession process.
- 3 Whether the preliminary objection by the 2nd respondent is merited.
Ratio Decidendi
The court held that since the suit was filed solely by the deceased, only a person who has obtained letters of administration in respect of the deceased's estate can be substituted as plaintiff. The applicant's status as a joint owner of the property does not entitle him to substitution without following the succession process. The existence of a separate suit by the applicant over the same property further supports the need for proper procedure. The preliminary objection by the 2nd respondent was therefore upheld, and the applicant's motion for substitution was struck out with costs to the 2nd respondent.
Court Disposition
preliminary objection upheld; substitution application struck out with costs to 2nd respondent
Orders
- The preliminary objection by the 2nd respondent is upheld.
- The Notice of Motion dated 15th April 2021 is struck out.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MILIMANI
ELC CASE NO. 1028 OF 2016
NASHON K OMWENGA..................................................PROPOSED PLAINTIFF
VERSUS
JOSEPH K NGIRIA.......................................................................1ST DEFENDANT
ESTATE OF JASON ATINDA OUKO(DECEASED)................2ND DEFENDANT
RULING
1. The suit herein was filed on 25th August 2016 by Marcella Omwenga (Deceased). The deceased died on 28th December 2020. On 15th April 2021, Nahson Kebwaro Omwenga who was husband to the deceased filed an application in which he seeks to be allowed to substitute the deceased as Plaintiff. He also sought injunctive orders against the 2nd Respondent.
2. Before the application could be heard, the 2nd Defendant /Respondent filed a preliminary objection on the ground that the Applicant has no locus standi to substitute the deceased before getting letters of administration. The 2nd Respondent contends that this case was filed by the deceased and that there is no way the Applicant can be brought in as a Plaintiff in place of the deceased without the Applicant first obtaining letters of administration in respect of the estate of the deceased.
3. The 2nd Respondent further argues that the Applicant had filed his own case that is ELC No. 416 of 2018 over the same suit property.
4. The Applicant opposed the 2nd Respondent’s preliminary objection on the ground that the Applicant is a co-owner of the suit property which was transferred to him jointly with the deceased and that he therefore does not require letters of administration in order to be substituted as the Plaintiff.
5. I have considered the preliminary objection by the 2nd Respondent and the opposition to the same by the Applicant. There is no doubt that this suit was filed by the deceased. This being the case, there is no way anyone can take it over unless it is through succession process. Even if the Applicant’s name was indicated in the transfer, this does not automatically mean that he can be substituted in place of the deceased. The Applicant has his own case under ELC 416 of 2018. If he wishes to take over this one, he has to get letters of administration in respect of the estate of the deceased. I therefore uphold the preliminary objection by the 2nd Respondent and proceed to strike out the Notice of Motion dated 15th April 2021 with costs to the 2nd Respondent.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 10TH DAY OF JUNE 2021.
E.O.OBAGA
JUDGE
In the Virtual presence of:-
Mr Gaturu for 1st Defendant and for Mr Achoki for Plaintiff
Mr Onyango for 2nd Defendant
Court Assistant: Okumu
E. O. OBAGA
JUDGE