[2022] KEELC 15087 (KLR)
The court found that the plaintiff could not substitute a legal representative for the deceased 1st defendant until the Public Trustee was appointed through succession proceedings. The delay in substitution was justified by the lack of a duly appointed personal representative, which was beyond the plaintiff's...
Source-derived case information.
- Citation
- [2022] KEELC 15087 (KLR)
- Parties
- Plaintiff: Francis Ndungu Njuguna; Defendant: Naomi Njeri Ndungu; Defendant: Land Registrar, Kiambu County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 143 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Amended Notice of Motion for Substitution and Revival of Suit
- Outcome
- Application allowed; suit revived and Public Trustee substituted as 1st defendant.
- Judges
- BM Eboso
- Legal Topics
- Substitution of Parties, Abatement of Suit, Revival of Suit, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Ndungu Njuguna
Plaintiff
Naomi Njeri Ndungu
Defendant
Land Registrar, Kiambu County
Defendant
Procedural Posture
Environment and Land Case / Ruling on Amended Notice of Motion for Substitution and Revival of Suit
Legal Issues
- 1 Whether the Public Trustee should be substituted in place of the deceased 1st defendant.
- 2 Whether the suit against the 1st defendant should be revived after abatement.
Ratio Decidendi
The court found that the plaintiff could not substitute a legal representative for the deceased 1st defendant until the Public Trustee was appointed through succession proceedings. The delay in substitution was justified by the lack of a duly appointed personal representative, which was beyond the plaintiff's control. Upon appointment of the Public Trustee, the plaintiff promptly sought substitution and revival of the suit. The court was satisfied that the application met the requirements for both substitution and revival, and allowed the application as prayed, noting the absence of any objection from the defendants.
Court Disposition
Application allowed; suit revived and Public Trustee substituted as 1st defendant.
Orders
- The Public Trustee is substituted in place of Naomi Njeri Ndungu as the 1st defendant.
- The suit against the 1st defendant is revived.
Full Case Text
Judgment text and source record
21 paragraphs
Njuguna v Ndungu & another (Environment & Land Case 143 of 2017) [2022] KEELC 15087 (KLR) (24 November 2022) (Ruling)
Neutral citation: [2022] KEELC 15087 (KLR)
Republic of Kenya
In the Environment and Land Court at Thika
Environment & Land Case 143 of 2017
BM Eboso, J
November 24, 2022
Between
Francis Ndungu Njuguna
Plaintiff
and
Naomi Njeri Ndungu
1st Defendant
Land Registrar, Kiambu County
2nd Defendant
Ruling
1. What falls for determination in this ruling is the plaintiff’s amended notice of motion dated 19/7/2022, through which the plaintiff seeks an order substituting the Public Trustee in place of Naomi Njeri Ndungu, as the 1st defendant. He also seeks an order reviving the suit/claim against the 1st defendant. The application is unopposed and it is supported by the affidavit of Gachoka Mwangi – advocate, sworn on 14/6/2022.
2. The applicant’s case is that the 1st defendant died sometime in July 2017. Her family members did not initiate succession proceedings. Owing to the unwillingness of her family members to initiate succession proceedings, he was forced to take out a citation in Kiambu High Court Succession Cause No 37 of 2019. The citation was disposed in May 2021 through an order issued by Hon Lady Justice Kasango, granting the Public Trustee a Grant of Letters of Administration to administer the estate of the 1st defendant. The applicant contends that, in the absence of a duly appointed person representative, he could not apply for substitution. He adds that by the time the grant was issued to the Public Trustee the suit against the 1st defendant had already abated.
3. The court has considered the two limbs of the application and the explanation tendered in support of the application. The court has also considered the evidence tendered by the applicant. In the absence of any objection, the court is satisfied that the two orders set out in the amended notice of motion dated 19/7/2022 are merited. The application is accordingly allowed in terms of prayers 1 and 2. Costs shall be in the cause.
4. The plaintiff shall amend the plaint, and file and serve the amended plaint within seven (7) days. Further, the plaintiff shall file and serve a single, bound, paginated and indexed bundle containing his pleadings, his witness statements and his documentary evidence within 15 days from today. In default of compliance with the order relating to the trial bundle, the suit herein shall stand dismissed.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 24TH DAY OF NOVEMBER 2022B M EBOSOJUDGECourt Assistant: Ms Osodo