[2023] KEELC 17326 (KLR)
The court found that the applicant had provided sufficient justification for the delay in applying for substitution of the deceased 2nd Defendant. The delay was attributed to the time required to obtain Letters of Administration, which was necessary before substitution could be effected. The court held that the...
Source-derived case information.
- Citation
- [2023] KEELC 17326 (KLR)
- Parties
- Applicant: Grace Wairimu Njogu (Suing as the Administrator of the Estate of the Late Waiganjo Muriithi); Defendant: Anthony Murage Mutogi alias Kanyago; Defendant: Agostine Mungere Mutongu; Defendant: Esther Warui Mugo; Defendant: Stephen Murage; Defendant: Frasiar Nyawira Ngacha; Defendant: Peter Muriithi Kinyua; Defendant: Jane Wanjiku Muriithi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 21 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Application for Revival and Substitution of a Deceased Defendant
- Outcome
- Application allowed; suit revived and substitution of the deceased 2nd Defendant granted.
- Judges
- JM Mutungi
- Legal Topics
- Abatement of Suit, Substitution of Parties, Revival of Suit, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Wairimu Njogu (Suing as the Administrator of the Estate of the Late Waiganjo Muriithi)
Applicant
Anthony Murage Mutogi alias Kanyago
Defendant
Agostine Mungere Mutongu
Defendant
Esther Warui Mugo
Defendant
Stephen Murage
Defendant
Frasiar Nyawira Ngacha
Defendant
Peter Muriithi Kinyua
Defendant
Jane Wanjiku Muriithi
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application for Revival and Substitution of a Deceased Defendant
Legal Issues
- 1 Whether the suit against the deceased 2nd Defendant should be revived and the deceased substituted with the appointed administrators.
- 2 Whether the delay in applying for substitution was sufficiently explained and justified.
Ratio Decidendi
The court found that the applicant had provided sufficient justification for the delay in applying for substitution of the deceased 2nd Defendant. The delay was attributed to the time required to obtain Letters of Administration, which was necessary before substitution could be effected. The court held that the delay of two months after the issuance of the Letters of Administration was not inordinate or inexcusable. Consequently, the court exercised its discretion to revive the suit against the 2nd Defendant and allow substitution, finding that the reasons advanced by the applicant met the threshold for extension of time under the Civil Procedure Rules. The court further noted that other...
Court Disposition
Application allowed; suit revived and substitution of the deceased 2nd Defendant granted.
Orders
- The case against the 2nd Defendant is revived and the deceased 2nd Defendant is substituted with Rose Muthoni Mungere and Nancy Wangithi Mungere.
- The costs of the application will be in the cause.
Full Case Text
Judgment text and source record
34 paragraphs
Njogu (Suing as the Administrator of the Estate of the Late Waiganjo Muriithi) v Kanyago & 6 others (Environment & Land Case 21 of 2017) [2023] KEELC 17326 (KLR) (11 May 2023) (Ruling)
Neutral citation: [2023] KEELC 17326 (KLR)
Republic of Kenya
In the Environment and Land Court at Kerugoya
Environment & Land Case 21 of 2017
JM Mutungi, J
May 11, 2023
Between
Grace Wairimu Njogu
Applicant
Suing as the Administrator of the Estate of the Late Waiganjo Muriithi
and
Anthony Murage Mutogi alias Kanyago
1st Defendant
Agostine Mungere Mutongu
2nd Defendant
Esther Warui Mugo
3rd Defendant
Stephen Murage
4th Defendant
Frasiar Nyawira Ngacha
5th Defendant
Peter Muriithi Kinyua
6th Defendant
Jane Wanjiku Muriithi
7th Defendant
Ruling
1. The plaintiff/applicant vide a notice of motion dated November 14, 2019 brought under order 1 rule 10, order 24 rule 4 & 7 prays for orders:-1)That the Court do revive the case against the 2nd Defendant and substitute the deceased 2nd Defendant with Rose Muthoni Mungere and Nancy Wangithi Mungere.2)That costs of the suit be provided for.
2. The Applicant explained that the 2nd Defendant died on 4/8/2018 and that she had to take out citation proceedings vide Kerugoya CM Succ Cause No. 261 of 2018 to have Rose Muthoni Mungere & Nancy Wangithi Mungere appointed administrators of the deceased estate. The Letters of Administration were issued to the two on 2nd September, 2019 by which time the period of one year had lapsed since the death of the 2nd Defendant. The Plaintiff averred that it took sometime to have the Letters of Administration issued which explained the delay in making the application for the substitution of the 2nd Defendant.
3. The persons intended to be substituted in place of the 2nd Defendant filed grounds of opposition dated February 3, 2020. They argued that the suit against the 2nd Defendant abated on 5th August, 2019 and contended that no sufficient reason had been given that prevented the Plaintiff from prosecuting the suit before the suit abated. Further the intended representatives of the 2nd Defendant contended the claim against the 2nd Defendant had become time barred by the time the suit was filed.
4. I have considered the application, the Affidavit in support and the grounds of opposition filed on behalf of the representatives appointed to administer the Estate of the deceased 2nd Defendant. Considering the Plaintiff had to cite the Respondents before they could agree to take out Letters of Administration to the estate of the deceased 2nd Defendant, I do not consider there was inordinate delay in applying for substitution. From the Affidavit of service of citation filed as an annexture to the application, it is evident that the Plaintiff cited the Respondents in October, 2018 soon after the 2nd Defendant had died in August, 2018. The application for substitution was filed on 15/11/2019 following the issue of the grant of Letters of Administration Intestate to the Respondents on 2nd September, 2019. The delay of 2 months in filing the application from the date of issue of the letters of Administration cannot be said to be inordinate or in excusable considering that further the Plaintiff could not have obtained copy of the same on the same day they were signed by the Court. I therefore, find there is sufficient justification to warrant the court to extend the period for applying for the substitution of the 2nd Defendant and revive the suit against the 2nd Defendant.
5. The other grounds the Respondents have put forth in opposing the application for substitution go to the merits of the suit which the parties will canvass during the trial. I accordingly allow the Plaintiffs application in terms of prayer (1) of the Notice of Motion dated November 14, 2019. The costs of the application will be in the cause.
6. The suit is fixed for mention on 7/6/2023 for pre-trial directions. Any parties who have not complied to ensure compliance by then.
RULING DATED, SIGNED AND DELIVERED THIS 11TH DAY OF MAY 2023. JOHN M. MUTUNGIE.L.C -JUDGE