[2023] KEELC 20519 (KLR)
The court found that the parties had not taken timely steps to substitute the deceased plaintiffs and defendants, and in the absence of death certificates and formal applications for substitution, the suits for or against the deceased parties must be marked as abated. However, the court exercised its discretion to...
Source-derived case information.
- Citation
- [2023] KEELC 20519 (KLR)
- Parties
- Plaintiff: Bernard Mwangi Nderitu; Plaintiff: Hesbon Omondi; Plaintiff: Francis Rumano; Plaintiff: Peter Wambugu; Plaintiff: Stephen Kamau; Plaintiff: Mary Wambu (Deceased); Defendant: Ndiara Enterprises Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 5 of 2010
- Procedural Posture
- Ruling / Application for Substitution of Deceased Parties and Directions on Abatement
- Outcome
- Partial abatement and directions issued.
- Judges
- LN Mbugua
- Legal Topics
- Abatement of Suit, Substitution of Parties, Death of Litigant, Case Management, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Mwangi Nderitu
Plaintiff
Hesbon Omondi
Plaintiff
Francis Rumano
Plaintiff
Peter Wambugu
Plaintiff
Stephen Kamau
Plaintiff
Mary Wambu (Deceased)
Plaintiff
Ndiara Enterprises Limited
Defendant
Procedural Posture
Ruling / Application for Substitution of Deceased Parties and Directions on Abatement
Legal Issues
- 1 Whether the suit for or against deceased parties should be marked as abated due to failure to substitute within the prescribed time.
- 2 Whether the court should grant an extension of time for substitution of a deceased party.
- 3 Whether the parties should be directed to fix the matter for hearing.
Ratio Decidendi
The court found that the parties had not taken timely steps to substitute the deceased plaintiffs and defendants, and in the absence of death certificates and formal applications for substitution, the suits for or against the deceased parties must be marked as abated. However, the court exercised its discretion to allow the defendant's advocate a further 45 days to file a formal application for substitution of the 4th defendant, recognizing the need for procedural fairness and the interests of justice. The court also directed the parties to fix the matter for hearing, ensuring the expeditious disposal of the remaining issues in the suit.
Court Disposition
Partial abatement and directions issued.
Orders
- The case for or against the 6th plaintiff (Mary Wambui) in No 5/2010 is marked as abated.
- The case for or against the 7th defendant Peter Rukaria in case No 128/2020 is marked as abated.
Full Case Text
Judgment text and source record
34 paragraphs
Nderitu & 5 others v Ndiara Enterprises Limited (Environment & Land Case 5 of 2010) [2023] KEELC 20519 (KLR) (5 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20519 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 5 of 2010
LN Mbugua, J
October 5, 2023
Between
Bernard Mwangi Nderitu
1st Plaintiff
Hesbon Omondi
2nd Plaintiff
Francis Rumano
3rd Plaintiff
Peter Wambugu
4th Plaintiff
Stephen Kamau
5th Plaintiff
Mary Wambu (Deceased)
6th Plaintiff
and
Ndiara Enterprises Limited
Defendant
Ruling
1. Some parties have passed on in this matter, thus the case was mentioned on October 3, 2023 to gauge the progress of substitution of the parties who are deceased Mr Nyamberi for 3rd and 4th defendants in case No 5 of 2010 as well as M/s Kariuki for plaintiff in case No 128/2020 were in agreement that the 6th plaintiff in case No 5 of 2010 (Mary Wambui) died several years ago, thus her case had Abated.
2. Mr. Nyamberi further informed the court that his client, one Peter Wambugu the 4th defendant in case No 5 / 2010 died in March this year and that the widow of the deceased has promised to avail the death certificate. Thus there is no grant yet. He prays for an extension to substitute in 30-45 days.
3. Mr. Nyamberi holding brief for Mrs. Owino also sought extension of time to produce a death certificate in respect of one Patrick Mukaria, the 7th defendant in case No 128/2020.
4. In opposition, M/s Kariuki prays for a hearing date contending that no efforts have been made to substitute the deceased parties and that for Rukaria, he died way back on October 16, 2020.
5. I have considered the applications made, the responses thereof as well as the record.
6. The records of the court indicate that this matter was listed for hearing on June 28, 2023 and June 29, 2023. However on June 29, 2023 Mrs Owino indicated that they had a letter signed by Mr. Nyamberi stating that“They lost 4th plaintiff and the family is in the process of substituting…..”
7. Today, it has emerged that the 4th plaintiff died way back in March, but Mr. Nyamberi doesn’t even have a death certificate which means the process of substitution has not commenced.
8. For Patrick Rukaria a death certificate availed indicates that he died on October 16, 2020. Thus there is no case for or against him.
9. In the final analysis, I give orders as follows:1. The case for or against 6th plaintiff (Mary Wambui) in No 5/2010 is marked as Abated.2. The case for or against the 7th defendant Peter Rukaria in case No 128/2020 is marked as abated.3. The court directs the parties to take a hearing date.4. Mr. Nyamberi is however at liberty to file a relevant application for substitution of 4th defendant within 45 days (by November 20, 2023).
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 5THDAY OF OCTOBER, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-B. Kariuki for PlaintiffNyamberi holding brief for Mrs Owino for 5th Plaintiff in 5 of 2010 and the 11th and 18th Defendants in 128 of 2016Bosire for 5th Defendant in 128 of 2016Hesbon Omondi in personCourt Assistant: EddelELC CASE No 5 OF 2010 (Ruling) Page 3 of 3