[2023] KEELC 20582 (KLR)
The court found that the applicant, Oliver B. Ochengo, had the requisite legal capacity to be substituted for the deceased petitioner, having obtained a limited grant of letters of administration ad litem. There was no evidence that the petitioner’s advocate was served with a hearing notice for the date the petition...
Source-derived case information.
- Citation
- [2023] KEELC 20582 (KLR)
- Parties
- Applicant: Oliver B. Ochengo; Petitioner: Daniel Ochengo Oendo; Respondent: David Okerio Ogechi; Respondent: Nyambane Nyanchongi; Respondent: District Land Registrar, Nyamira; Respondent: The Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Petition 3 of 2021
- Procedural Posture
- Environment and Land Petition / Ruling on Application for Reinstatement and Substitution After Dismissal for Non Attendance
- Outcome
- Application allowed; substitution granted; dismissal order set aside; petition reinstated.
- Judges
- JM Kamau
- Legal Topics
- Reinstatement of Suit, Substitution of Parties, Non Attendance, Letters of Administration, Service of Hearing Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oliver B. Ochengo
Applicant
Daniel Ochengo Oendo
Petitioner
David Okerio Ogechi
Respondent
Nyambane Nyanchongi
Respondent
District Land Registrar, Nyamira
Respondent
The Attorney General
Respondent
Procedural Posture
Environment and Land Petition / Ruling on Application for Reinstatement and Substitution After Dismissal for Non Attendance
Legal Issues
- 1 Whether the applicant should be substituted in place of the deceased petitioner.
- 2 Whether the orders dismissing the petition for non-attendance should be set aside and the suit reinstated.
- 3 Whether the applicant had legal capacity to bring the application for reinstatement.
Ratio Decidendi
The court found that the applicant, Oliver B. Ochengo, had the requisite legal capacity to be substituted for the deceased petitioner, having obtained a limited grant of letters of administration ad litem. There was no evidence that the petitioner’s advocate was served with a hearing notice for the date the petition was dismissed for non-attendance. The court held that the failure of the advocate to attend should not prejudice the deceased petitioner, especially in the absence of proof of service. The 2nd respondent, who claimed to have served the hearing notice, did not provide evidence of such service and did not attend court himself on the relevant date. The court concluded that the...
Court Disposition
Application allowed; substitution granted; dismissal order set aside; petition reinstated.
Orders
- The applicant, Oliver B. Ochengo, is substituted in place of the deceased petitioner.
- The orders of 21/09/2022 dismissing the petition for non-attendance are set aside.
Full Case Text
Judgment text and source record
29 paragraphs
Ochengo & another v Ogechi & 3 others (Environment & Land Petition 3 of 2021) [2023] KEELC 20582 (KLR) (11 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20582 (KLR)
Republic of Kenya
In the Environment and Land Court at Nyamira
Environment & Land Petition 3 of 2021
JM Kamau, J
October 11, 2023
Between
Oliver B. Ochengo
Applicant
and
Daniel Ochengo Oendo
Petitioner
and
David Okerio Ogechi
1st Respondent
Nyambane Nyanchongi
2nd Respondent
District Land Registrar, Nyamira
3rd Respondent
The Attorney General
4th Respondent
Ruling
1. This suit was dismissed on 21/09/2023 for non-attendance. On the said date the Petition dated October 17, 2013came up for Hearing and only Mr. Nderitu was present in court for the 3rd and 4th respondent. No one appeared for the petitioner and the other respondent. When the matter was called up at 9. 30a.m, the file was placed aside to allow the petitioner time to show up. At 10. 30a.m. again no one showed up for the petitioner. The Petition was consequently dismissed by the court.
2. On 08/06/2023, the petitioner moved the court with a Motion urging the court to re-consider its Decision of dismissing the Petition and reinstate the same. Counsel for the petitioner also urged the court to substitute the petitioner with his wife one Oliver B. Ochengo since the petitioner died on 05/07/2022. A copy of the certificate of death is attached to the application as Exhibit OBO – 1. Limited Grant of Letters of Administration (Ad Litem) is also attached to the application as OBO -2 giving the said Ms. Ochengo letters of administration (Ad Litem) in respect of the Estate of the petitioner herein. The said Oliver B. Ochengo depones in her Affidavit in support of the application sworn on 08/06/2023 that on 27/07/2022 when the matter came up for Hearing the petitioner had died but no one brought this fact to the attention of the court. Thepetitioner’s Advocate was not informed of the next Hearing date and that is why he never turned up in court on 21/09/2022.
3. In opposition to the said application, the 2nd respondent has filed a replying affidavit sworn on 17/07/2023 deponing that his Advocate had served the petitioner’s Advocate with a Hearing Notice for 27/07/2022. No such evidence has been produced. He also claimed that the Applicant, Oliver B. Ochengo has no legal capacity to bring this application “as she has not applied for nor obtained letters of administration in respect of the Deceased’s Estate. This again is not accurate as all that one needs is an ad litem Grant which Ms. Ochengo has already annexed to her application. He also states that the Petition herein has no chances of success and gone ahead to give reasons for the opinion. We are not at the moment interested with the merit of otherwise of the Petition.
4. As to the applicant’s prayer being allowed to be substituted in place of the petitioner, the same is allowed.
5. On the prayer of setting aside the orders of 21/09/2022 and the reinstatement of the suit, I take cognizance of the court records of 27/07/2022 that there was no appearance for the petitioner nor his Advocate on the material date. The petitioner was by then deceased. Although the petitioner’s Advocate should have explained why he himself did not turn up in court, the sins of an Advocate cannot be visited on his client and worse so an already dead client. In spite of the 2nd Respondent having been in court on 27/07/2022 his Advocate was not in court and he told the court that his Advocate had told him to come to court without an indication as to whether he (the Advocate) would also come to court. He was ordered to serve the petitioner. I have not seen a Hearing Notice. I cannot speculate whether by this time the 2nd respondent knew that the petitioner had died but did not to bring this to the attention of the court. But nevertheless, there is no evidence the petitioner’s Advocate was served with a hearing notice and this could explain why he never turned up in court on 21/09/2022. The 1st & 2nd respondent also never turned up in court. Only counsel for the 3rd & 4th respondent did. The 2nd Respondent can therefore not benefit from and take advantage of the petitioner’s death when he himself did not turn up in court for the Hearing having been the only one who knew about the hearing date. The orders of 21/09/2022 dismissing this Petition for non-attendance are hereby set aside and this Petition is reinstated. The same shall be heard within the next 60 Days from the date of this ruling.
RULING DATED AND DELIVERED AT NYAMIRA THIS 11TH DAY OF OCTOBER 2023. MUGO KAMAUJUDGEIn the Presence of:petitioner: Mr. Okenye holding brief for Mr. Mokuarespondent: Mr. Ranah for the 3rd & 4th respondent.