[2022] KEHC 15533 (KLR)
The court found that the applicant had provided sufficient evidence of the plaintiff's death and his authority to act as her legal representative through the ad litem grant. As the application for substitution was unopposed and no prejudice would be caused to the defendants, the court exercised its discretion to...
Source-derived case information.
- Citation
- [2022] KEHC 15533 (KLR)
- Parties
- Plaintiff: Emelda Musundi Ojwang; Defendant: Fredrick Osore Okwalo; Defendant: Kenneth Musumba; Applicant: Alfred Juma Ojwang
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 12 of 2004
- Procedural Posture
- Civil Case / Ruling on Substitution of Deceased Plaintiff at Execution Stage
- Outcome
- application for substitution allowed
- Judges
- RE Aburili
- Legal Topics
- Substitution of Parties, Execution of Judgment, Death of Litigant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emelda Musundi Ojwang
Plaintiff
Fredrick Osore Okwalo
Defendant
Kenneth Musumba
Defendant
Alfred Juma Ojwang
Applicant
Procedural Posture
Civil Case / Ruling on Substitution of Deceased Plaintiff at Execution Stage
Legal Issues
- 1 Whether the applicant should be substituted as plaintiff following the death of the original plaintiff during execution proceedings.
Ratio Decidendi
The court found that the applicant had provided sufficient evidence of the plaintiff's death and his authority to act as her legal representative through the ad litem grant. As the application for substitution was unopposed and no prejudice would be caused to the defendants, the court exercised its discretion to allow the substitution to facilitate the continuation of execution proceedings. The court further noted that the matter was at the execution stage and that the substitution was necessary for the enforcement of the judgment already entered in favour of the deceased plaintiff.
Court Disposition
application for substitution allowed
Orders
- Alfred Juma Ojwang is hereby substituted as plaintiff in place of the deceased Emelda Musundi Ojwang.
- No orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
Ojwang v Okwalo & another (Civil Case 12 of 2004) [2022] KEHC 15533 (KLR) (16 November 2022) (Ruling)
Neutral citation: [2022] KEHC 15533 (KLR)
Republic of Kenya
In the High Court at Kisumu
Civil Case 12 of 2004
RE Aburili, J
November 16, 2022
Between
Emelda Musundi Ojwang
Plaintiff
and
Fredrick Osore Okwalo
1st Defendant
Kenneth Musumba
2nd Defendant
Ruling
1. I have considered the application dated May 31, 2022 and the grounds and supporting affidavit as well as the annextures thereto.
2. The plaintiff died on December 12, 2018 after judgment was entered in her favour and during execution proceedings. The proposed substitute/applicant Alfred Juma Ojwang has annexed copy of death certificate and ad litem grant issued on May 19, 2022. The application is not opposed. No prejudice will be occasioned if the same is allowed.
3. I hereby allow the application dated May 31, 2022 and order that Alfred Juma Ojwang is hereby a substitute of the plaintiff now deceased Emelda Musundi Ojwang.
4. I make no orders as to costs.
5. As the matter is at execution stage, it shall be mentioned before the Deputy Registrar for further execution process.
6. Mention on December 15, 2022.
7. The plaintiff to serve the defendant with notice of mention.
8. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 16TH DAY OF NOVEMBER 2022R. E. ABURILIJUDGE