[2023] KEELC 17466 (KLR)
The court found that the application for substitution was filed after the lapse of one year from the death of the 2nd defendant, meaning the suit had abated by operation of law. However, as there was no objection from the plaintiff and the applicant had obtained the necessary letters of administration, the court...
Source-derived case information.
- Citation
- [2023] KEELC 17466 (KLR)
- Parties
- Plaintiff: Zablon Mose Oatwa; Defendant: Joseph Miroro; Defendant: Truphena Moraa Sangoi; Applicant: Moranga Sangoi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 445 of 2015
- Procedural Posture
- Environment and Land Case / Ruling on Application for Substitution of Deceased Defendant
- Outcome
- Application allowed. The 2nd defendant is substituted by the applicant to continue the suit on behalf of the estate of the deceased 2nd defendant.
- Judges
- M Sila
- Legal Topics
- Substitution of Parties, Abatement of Suit, Adverse Possession, Revival of Abated Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zablon Mose Oatwa
Plaintiff
Joseph Miroro
Defendant
Truphena Moraa Sangoi
Defendant
Moranga Sangoi
Applicant
Procedural Posture
Environment and Land Case / Ruling on Application for Substitution of Deceased Defendant
Legal Issues
- 1 Whether the applicant should be allowed to substitute the deceased 2nd defendant under Order 24 of the Civil Procedure Rules.
- 2 Whether the suit had abated by operation of law due to lapse of one year after the 2nd defendant's death.
- 3 Whether the court should exercise its discretion to revive the abated suit and allow substitution despite delay.
Ratio Decidendi
The court found that the application for substitution was filed after the lapse of one year from the death of the 2nd defendant, meaning the suit had abated by operation of law. However, as there was no objection from the plaintiff and the applicant had obtained the necessary letters of administration, the court exercised its discretion under Order 24 Rule 7 of the Civil Procedure Rules to allow the substitution and revive the suit. The absence of opposition and the interests of justice justified the court's decision to grant the application despite the delay.
Court Disposition
Application allowed. The 2nd defendant is substituted by the applicant to continue the suit on behalf of the estate of the deceased 2nd defendant.
Orders
- The 2nd defendant, Truphena Moraa Sangoi, is substituted by Moranga Sangoi as a party to the suit.
- Moranga Sangoi will continue the suit on behalf of the estate of the 2nd defendant.
Full Case Text
Judgment text and source record
27 paragraphs
Oatwa v Miroro & 2 others (Environment & Land Case 445 of 2015) [2023] KEELC 17466 (KLR) (16 May 2023) (Ruling)
Neutral citation: [2023] KEELC 17466 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisii
Environment & Land Case 445 of 2015
M Sila, J
May 16, 2023
Between
Zablon Mose Oatwa
Plaintiff
and
Joseph Miroro
1st Defendant
Truphena Moraa Sangoi
2nd Defendant
Moranga Sangoi
3rd Defendant
Ruling
1. The application before me is that dated 15 June 2022 filed by one Moranga Sangoi pursuant to the provisions of Order 24 rule 3 (1) of the Civil Procedure Rules. The applicant wishes to substitute the 2nd defendant/counterclaimant, one Truphena Moraa Sangoi, as she is deceased. The application is supported by an initial affidavit filed with the application and a supplementary affidavit which was subsequently filed so as to annex the Certificate of Death of the said Truphena Moraa Sangoi.
2. I have gone through the application and the record. I observe that the suit was commenced through a plaint filed on 30 September 2015 with one Joseph Miroro Sangoi as 1st defendant and Truphena Moraa Sangoi as 2nd defendant. The plaintiff contends that he is the rightful owner of the land parcel Nyaribari Masaba/Bokimotwe I/1600 which he purchased from one David Osoro Mbegera. It is claimed that Mr. Mbegera had in turn bought the land from the late husband to the deceased 2nd defendant and father to the 1st defendant. The plaintiff complained that the two defendants were laying claim to the land stating that it belongs to them and had prevented him from developing it. He pleaded that the defendants had no right to trespass into the land. In the suit, the plaintiff sought orders to have the two defendants permanently restrained from the suit land and costs. The defendants filed a defence and counterclaim. In the counterclaim they seek orders to be declared to have obtained title to the suit land by way of adverse possession.
3. The present application avers that the 2nd defendant died on 17 December 2020. The applicant states that he obtained letters of administration ad litem on 31 May 2022 and now wishes to substitute the deceased 2nd defendant.
4. The plaintiff did not file anything to oppose the application, and indeed, Mr. Okenye, learned counsel for the plaintiff, informed court that his client does not oppose the application.
5. I have given the application due consideration. I can see that the deceased died on 17 December 2020. Pursuant to Order 24 Rule 3 and 4 an application for substitution needed to be filed within one year of death or else the suit abates. I observe that one year from the demise of the 2nd defendant had lapsed and the suit thus abated by operation of law. The court however has discretion to extend time under Order 24 Rule 7 to revive an abated suit if sufficient cause is shown. I have not really been given any reasons why the application for substitution was not filed within one year as prescribed. However, since there is no objection to the application, I will exercise my discretion in favour of the applicant.
6. I allow the application. The 2nd defendant is hereby substituted by the applicant and the applicant will continue the suit on behalf of the estate of the 2nd defendant.
7. I make no orders as to costs.
8. Orders accordingly.
DATED AND DELIVERED AT KISII THIS 16TH DAY OF MAY, 2023JUSTICE MUNYAO SILAJUDGE,ENVIRONMENT AND LAND COURT AT KISII