[2017] KEELC 3338 (KLR)
The court found that the applicant, Cyrus Karachi Macharia, had demonstrated sufficient cause for enlargement of time and substitution as the 5th Respondent, supported by his status as administrator of the deceased's estate and the grant of letters of administration. The application was unopposed, and the procedural...
Source-derived case information.
- Citation
- [2017] KEELC 3338 (KLR)
- Parties
- Applicant: Ngari Nguru; Respondent: Josphat Macharia Karachi; Respondent: Stephen Muya Chege; Respondent: Susan Nyambura Macharia; Respondent: Esther Muthoni Macharia; Respondent: Cyrus Karachi Macharia; Respondent: Henry Mwangi Ndungu; Respondent: Joseph Muiruri Kamundu; Respondent: Igoki Nguru; Respondent: Cecily Mwendia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 30 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Substitution and Joinder
- Outcome
- application partially allowed
- Legal Topics
- Substitution of Parties, Joinder of Parties, Enlargement of Time, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngari Nguru
Applicant
Josphat Macharia Karachi
Respondent
Stephen Muya Chege
Respondent
Susan Nyambura Macharia
Respondent
Esther Muthoni Macharia
Respondent
Cyrus Karachi Macharia
Respondent
Henry Mwangi Ndungu
Respondent
Joseph Muiruri Kamundu
Respondent
Igoki Nguru
Respondent
Cecily Mwendia
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Substitution and Joinder
Legal Issues
- 1 Whether the court should grant enlargement of time for substitution of a deceased party.
- 2 Whether Cyrus Karachi Macharia should be substituted as the 5th Respondent in place of the deceased 1st Respondent.
- 3 Whether the mother and wife of the original Applicant should be joined as interested parties.
Ratio Decidendi
The court found that the applicant, Cyrus Karachi Macharia, had demonstrated sufficient cause for enlargement of time and substitution as the 5th Respondent, supported by his status as administrator of the deceased's estate and the grant of letters of administration. The application was unopposed, and the procedural requirements for substitution were met. However, the court declined to join the mother and wife of the original Applicant as interested parties, reasoning that joinder should not be imposed against their will, especially where they have legal capacity to apply for joinder themselves. The court emphasized that such parties are at liberty to make their own applications to join...
Court Disposition
application partially allowed
Orders
- Prayer Nos. 2 and 3 of the Notice of Motion dated 22nd April 2016 are allowed (enlargement of time and substitution of 1st Respondent with Cyrus Karachi Macharia as 5th Respondent).
- Prayer No. 4 (joinder of mother and wife of original Applicant as interested parties) is disallowed.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE E.L.C. COURT OF KENYA AT EMBU
E.L.C NO 30 OF 2014
FORMERLY ELC 674 OF 2013
NGARI NGURU...................................................................................APPLICANT
VERSUS
JOSPHAT MACHARIA KARACHI.......................................1ND RESPONDENT
STEPHEN MUYA CHEGE......................................................2ND RESPONDENT
SUSAN NYAMBURA MACHARIA........................................3ND RESPONDENT
ESTHER MUTHONI MACHARIA..........................................4ND RESPONDENT
CYRUS KARACHI MACHARIA.......................5TH RESPONDENT/APPLICANT
HENRY MWANGI NDUNGU...................................................6TH RESPONDENT
JOSEPH MUIRURI KAMUNDU............................................7TH RESPONDENT
AND
IGOKI NGURU..................................1ST INTERESTED PARTY/RESPONDENT
CECILY MWENDIA..........................2ND INTERESTED PARTY/RESPONDENT
RULING
1. On or about 22nd April 2016, the firm of R.W. Chege and Associates Advocates filed a Notice of Motion dated 22nd April 2016 on behalf of the Applicant Cyrus Karachi Macharia, who intended to be joined in these proceedings as the 5th Respondent.
2. The said application was supported by the affidavit of Cyrus Karachi Macharia sworn on the date of filing. It is sworn in the said affidavit that he is the son of the 1st Respondent who is now deceased and that he is the administrator of the estate of his late father. A copy of the grant of letters of administration intestate was attached as exhibit CKM 1.
3. It is also stated by the Applicant that the original Applicant in this suit died sometime in 2015 and the concerned family members have been reluctant to take out letters of administration despite a citation being served upon some of them in a succession cause under the Law of Succession Act (Cap 160).
4. The court was also informed by counsel for the Applicant that the limited grant ad litem was issued to the mother of the deceased on 22nd April 2016 for purposes of the pending suits including the instant one.
5. The said application was served upon the firm of Macharia Muraguri & Co Advocates for the original Applicant by registered post and personally upon the firm of Muriuki Njagagua & Co Advocates for the 2nd Respondent. The served firms did not turn up for hearing of the said application on 7th March 2017 when it was scheduled for hearing. I was also informed that the other Respondents have never entered appearance in these proceedings.
6. The advocate for the intended 5th Respondent prosecuted her said application before me and urged the court to allow the same since it was not opposed.
7. I have considered the said application and I am inclined to grant prayers 2 and 3, that is, the prayer for enlargement of time and the substitution of the 1st Respondent with Cyrus Karachi Macharia as the 5th Respondent in the proceedings.
8. I have also considered prayer 4 seeking to join the mother and wife of the original Applicant in the Originating Summons (who is deceased) as interested parties. I am hesitant to join them as such in view of the fact that they appear to be reluctant to act on the citation served upon them under the Law of Succession Act. These two individuals appear to be persons who have legal capacity to seek to join the proceedings and to determine the capacity in which they may want to participate. It would not be appropriate for the 5th Respondent or the court to join them against their will or to choose for them the capacity in which to participate in the proceedings.
9. It is, therefore, my view that the proposed interested parties ought not to be joined as such at this stage. They are, however, at liberty to make their own application to be joined, in whatever capacity, in the pending proceedings given that the mother of the deceased Applicant, Igoki Nguru, has been granted a limited grant ad litem, she may also apply for substitution to join the proceedings in place of her deceased son.
10. The upshot of the foregoing is that the Notice of Motion dated 22nd April 2016 partially succeeds in the following terms:
a) Prayer Nos. 2 and 3 are hereby allowed.
b) Prayer No. 4 is hereby disallowed.
c) The costs of the application shall be in the cause.
d) A date for directions shall be fixed after delivery of the ruling.
Orders accordingly.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 15th day of MARCH 2017
In the presence of R.W Chege for the 5th Respondent and in the absence of all the other parties.
Court clerk Njue
Y.M. ANGIMA
JUDGE
15. 03. 17