[2010] KEHC 129 (KLR)
The court found that the suit had abated as against the deceased 1st Defendant, Habel King’ori Kiguta, because no legal representative had been substituted within the statutory one-year period following his death. As a result, there was no competent suit before the court in which the proposed 2nd and 3rd Defendants...
Source-derived case information.
- Citation
- [2010] KEHC 129 (KLR)
- Parties
- Applicant: Nephat Kiguta King’ori; Applicant: Newton Igoko King’ori; Applicant: Wanjohi King’ori Kiguta; Defendant: Habel King’ori Kiguta; Respondent: Jane Gathoni King’ori; Respondent: Grace Waruguru Mathenge
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 11 of 2009
- Procedural Posture
- Civil Case / Ruling on Motion to Enjoin Parties
- Outcome
- motion dismissed
- Legal Topics
- Joinder of Parties, Abatement of Suit, Injunctions, Land Subdivision, Transfer of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nephat Kiguta King’ori
Applicant
Newton Igoko King’ori
Applicant
Wanjohi King’ori Kiguta
Applicant
Habel King’ori Kiguta
Defendant
Jane Gathoni King’ori
Respondent
Grace Waruguru Mathenge
Respondent
Procedural Posture
Civil Case / Ruling on Motion to Enjoin Parties
Legal Issues
- 1 Whether the proposed 2nd and 3rd Defendants can be enjoined in the suit after the abatement of the suit against the deceased 1st Defendant.
- 2 Whether the suit had abated due to failure to substitute the deceased defendant within the prescribed period.
- 3 Whether any competent suit exists to allow joinder of new defendants.
Ratio Decidendi
The court found that the suit had abated as against the deceased 1st Defendant, Habel King’ori Kiguta, because no legal representative had been substituted within the statutory one-year period following his death. As a result, there was no competent suit before the court in which the proposed 2nd and 3rd Defendants could be enjoined. The court agreed with the respondents' submissions and held that the motion to enjoin Jane Gathoni King’ori and Grace Waruguru Mathenge must fail. The motion was therefore dismissed with costs to the proposed defendants.
Court Disposition
motion dismissed
Orders
- The motion to enjoin Jane Gathoni King’ori and Grace Waruguru Mathenge as defendants is dismissed.
- Costs awarded to the proposed 2nd and 3rd Defendants.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CIVIL CASE NO. 11 OF 2009
NEPHAT KIGUTA KING’ORI..................................................................................1ST PLAINTIFF/APPLICANT
NEWTON IGOKO KING’ORI.................................................................................2ND PLAINTIFF/APPLICANT
WANJOHI KING’ORI KIGUTA...........................................................................3RD PLAINTIFF/APPLICANT
VERSUS
HABEL KING’ORI KIGUTA........................................................................................DEFENDANT (DECEASED)
AND
JANE GATHONI KING’ORI....................................................................................................1ST RESPONDENT
GRACE WARUGURU MATHENGE.....................................................................................2ND RESPONDENT
RULING
The subject matter of this ruling is the Motion dated 12th May 2010 in which Nephat Kiguta King’ori, Newton Igoko King’ori and Wanjohi King’ori Kiguta the Plaintiffs herein, have sought for an order to enjoin Jane Gathoni Kingori and Grace Waruguru Mathenge to be enjoined as the 2nd and 3rd Defendants in this suit. The Motion is said to be brought under the provisions of Order I rule 3 and 7 of the Civil Procedure Rules. It is supported by the affidavit of Nephat Kiguta King’ori. The intended 2nd and the 3rd Defendants filed grounds of opposition to resist the Motion.
I have considered the oral submissions of Mssrs A. Kariuki and Kingori, learned advocates for the Plaintiffs and the proposed 2nd and 3rd Defendants respectively. I have further considered the grounds set out on the face of the Motion and the facts deponed in the support affidavit plus the grounds of opposition. The substantive suit is expressed in the Plaint dated 22nd January 2009 in which the Plaintiffs are seeking for orders of injunction to restrain the 1st Defendant i.e. Habel King’ori Kiguta from disposing of the parcel of land known as L.R. NO. OTHAYA/IHURIRIO/698 until the beneficiaries are catered for. It would appear the 1st Defendant proceeded to subdivide the aforesaid parcel of land into seven subdivisions i.e. OTHAYA/IHURIRIO/1386 – 1392. There is evidence that two subdivisions were transferred to the proposed 2nd and 3rd Defendants. L.R. NO. OTHAYA/IHURIRIO/1391 was transferred to Jane Gathoni Kingori and L.R. NO. OTHAYA/IHURIRIO/1392 was transferred and registered in the joint names of Habel King’ori Kiguta, Jane Gathoni King’ori and Grace Waruguru Mathenge. It is the submission of the Plaintiffs that the aforesaid transfers were done when there was a valid court orderrestraining the 1st Defendant from doing so. The Proposed Defendants opposed the Motion on the basis that the suit has abated as against Habel Kingori Kiguta, deceased. There is no dispute that Habel King’ori Kiguta died on 19th October 2009. The law clearly states that the suit shall stand as having abated if one year passes before the deceased is substituted. As of 19th October 2010, the late Habel Kingori Kiguta had not been substituted with a legal representative. With respect, I agree with the submissions of Mr. Kingori that as of now this suit stands as having abated hence there is no competent suit that the proposed 2nd and 3rd Defendants can be enjoined. Being of that view, the Motion is for dismissal. It is dismissed with costs to the proposed 2nd and 3rd Defendants.
Dated and delivered at Nyeri this 19th day of November 2010.
J. K. SERGON
JUDGE
In open court in the presence of Mr. Ombongi holding brief A. K. Kariuki for the Applicant and Mr. Kingori for the Respondent.