[2022] KEELC 3273 (KLR)
The court found that the cause of action, being a claim to land and related reliefs, survives the death of the plaintiff and can be continued by his personal representatives. The applicants had provided the necessary documentation, including a Certificate of Death and a grant of letters of administration ad litem,...
Source-derived case information.
- Citation
- [2022] KEELC 3273 (KLR)
- Parties
- Plaintiff: Raphael Ndolo; Defendant: Samuel Muturi & another; Applicant: Rose Musengya Ndolo; Applicant: Esther Mwelu Raphael; Applicant: Charles Ndolo Raphael
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 192 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Deceased Plaintiff
- Outcome
- application allowed
- Judges
- M Sila
- Legal Topics
- Substitution of Parties, Survival of Actions, Death of Party, Title to Land, Fraudulent Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raphael Ndolo
Plaintiff
Samuel Muturi & another
Defendant
Rose Musengya Ndolo
Applicant
Esther Mwelu Raphael
Applicant
Charles Ndolo Raphael
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Deceased Plaintiff
Legal Issues
- 1 Whether the cause of action survives the death of the plaintiff and can be continued by personal representatives.
- 2 Whether the applicants have satisfied the requirements for substitution under Order 24 of the Civil Procedure Rules.
- 3 Whether the application for substitution was filed within the prescribed time to prevent abatement of the suit.
Ratio Decidendi
The court found that the cause of action, being a claim to land and related reliefs, survives the death of the plaintiff and can be continued by his personal representatives. The applicants had provided the necessary documentation, including a Certificate of Death and a grant of letters of administration ad litem, and had filed the application for substitution within one year of the plaintiff's death, thus preventing abatement of the suit. There was no opposition to the application, and the court saw no reason to deny it. Accordingly, the application for substitution was allowed, and the applicants were permitted to amend the plaint within 14 days.
Court Disposition
application allowed
Orders
- The applicants are allowed to substitute the deceased plaintiff.
- The plaint may be amended accordingly within 14 days.
Full Case Text
Judgment text and source record
20 paragraphs
Ndolo v Muturi & another (Environment & Land Case 192 of 2016) [2022] KEELC 3273 (KLR) (6 July 2022) (Ruling)
Neutral citation: [2022] KEELC 3273 (KLR)
Republic of Kenya
In the Environment and Land Court at Mombasa
Environment & Land Case 192 of 2016
M Sila, J
July 6, 2022
Between
Raphael Ndolo
Plaintiff
and
Samuel Muturi & another
Defendant
Ruling
(Application for substitution of the deceased plaintiff; application allowed) 1. The application before me is that dated 8 March 2022 filed by Rose Musengya Ndolo, Esther Mwelu Raphael, and Charles Ndolo Raphael. They bring this application under the provisions of Order 24 Rule 1, and 3 (1) of the Civil Procedure Rules, 2010 and what they seek is to substitute the plaintiff, who is said to be deceased. In the application they aver that the plaintiff died on 6 July 2021 and that the suit survives his death. They thus wish to substitute the deceased and continue with the suit. They have displayed the Certificate of Death and a grant of letters of administration ad litem limited for purposes of instituting or defending a suit.
2. The deceased had commenced this suit vide a plaint filed on 15 July 2015. He claimed to be the owner of the Plot No. 25xx (Original No. 4xx/3) Section VI, Mainland North. He contended that the defendants have illegally entered the land and fraudulently procured title to it. In the suit, he wished to have orders permanently restraining the defendants from the suit property.
3. This cause of action certainly survives the death of the deceased plaintiff and can be continued by his personal representatives. I also observe that the defendant died on 6 July 2021, and this application was filed before lapse of one year of his death. The case has therefore not abated.
4. I have no reason not to allow this application and it is hereby allowed. The applicants may proceed to substitute the deceased plaintiff and the plaint may be amended accordingly within 14 days. I make no orders as to the costs of this application.
5. Orders accordingly.
DATED AND DELIVERED THIS 6 DAY OF JULY 2022. JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURT AT MOMBASA