[2022] KEELC 15448 (KLR)
The court exercised its discretion to allow the substitution of the deceased first plaintiff with her legal representative, despite the application being brought under the wrong provision of law and the absence of evidence of service on other parties. The court found that no party would suffer prejudice as the cause...
Source-derived case information.
- Citation
- [2022] KEELC 15448 (KLR)
- Parties
- Applicant: Marcella Omwenga; Applicant: Isaiah Nyamari Mboto; Applicant: Joseph Kirera Nyabando; Applicant: Queen Kwamboka Muge; Applicant: Carolyne Munini Kivuva; Applicant: Mary Wanjiku Ngugi; Applicant: John Ngugi Kamau; Applicant: Stephen Mutinda Kivuva; Applicant: Dennis Bosire Nyangenya; Applicant: Robert Bakari Bosire; Defendant: Paula Njabi Njoroge (Sued as the Administrator of the Estate of Paul Muchiri - Ole Ngaruiya); Defendant: The District Land Registrar, Kajiado- North District; Defendant: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 65 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Substitution of Deceased Plaintiff
- Outcome
- Application for substitution of the deceased first plaintiff allowed.
- Judges
- MN Gicheru
- Legal Topics
- Substitution of Parties, Death of Plaintiff, Extension of Time, Legal Representative, Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marcella Omwenga
Applicant
Isaiah Nyamari Mboto
Applicant
Joseph Kirera Nyabando
Applicant
Queen Kwamboka Muge
Applicant
Carolyne Munini Kivuva
Applicant
Mary Wanjiku Ngugi
Applicant
John Ngugi Kamau
Applicant
Stephen Mutinda Kivuva
Applicant
Dennis Bosire Nyangenya
Applicant
Robert Bakari Bosire
Applicant
Paula Njabi Njoroge (Sued as the Administrator of the Estate of Paul Muchiri - Ole Ngaruiya)
Defendant
The District Land Registrar, Kajiado- North District
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Substitution of Deceased Plaintiff
Legal Issues
- 1 Whether the court should allow substitution of the deceased first plaintiff with her legal representative.
- 2 Whether the application for substitution is valid despite being brought under the wrong provision of law.
- 3 Whether the court should exercise discretion to extend time for substitution beyond one year after the plaintiff's death.
Ratio Decidendi
The court exercised its discretion to allow the substitution of the deceased first plaintiff with her legal representative, despite the application being brought under the wrong provision of law and the absence of evidence of service on other parties. The court found that no party would suffer prejudice as the cause of action survives the deceased, and that expediting the conclusion of the matter was in the interests of justice. The court relied on Order 24, Rule 3(2) of the Civil Procedure Rules, which permits extension of time for substitution even after one year from the plaintiff's death, and held that the overriding objective of the Civil Procedure Act supports such an order to...
Court Disposition
Application for substitution of the deceased first plaintiff allowed.
Orders
- The application dated March 22, 2022 is allowed.
- Nashon Omwenga is substituted in place of the deceased first plaintiff, Marcella Omwenga.
Full Case Text
Judgment text and source record
42 paragraphs
Omwenga & 9 others v Njoroge (Sued as the Administrator of the Estate of Paul Muchiri - Ole Ngaruiya) & 2 others (Environment & Land Case 65 of 2018) [2022] KEELC 15448 (KLR) (20 December 2022) (Ruling)
Neutral citation: [2022] KEELC 15448 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 65 of 2018
MN Gicheru, J
December 20, 2022
Between
Marcella Omwenga
1st Applicant
Isaiah Nyamari Mboto
2nd Applicant
Joseph Kirera Nyabando
3rd Applicant
Queen Kwamboka Muge
4th Applicant
Carolyne Munini Kivuva
5th Applicant
Mary Wanjiku Ngugi
6th Applicant
John Ngugi Kamau
7th Applicant
Stephen Mutinda Kivuva
8th Applicant
Dennis Bosire Nyangenya
9th Applicant
Robert Bakari Bosire
10th Applicant
and
Paula Njabi Njoroge (Sued as the Administrator of the Estate of Paul Muchiri - Ole Ngaruiya)
1st Defendant
The District Land Registrar,Kajiado- North District
2nd Defendant
The Hon. Attorney General
3rd Defendant
Ruling
1. This ruling is on the notice of motion dated March 22, 2022 which seeks to substitute the first plaintiff, Marcella Omwenga, with Nashon Omwenga.The said motion is supported by five grounds, an affidavit and three (3) annexures.The gist of the application is that the first plaintiff died on December 28, 2020 after a short illness and the applicant who is her husband needs to take up her place and continue with the suit.
2. The application is brought under sections 1A, 1B and 3A of the Civil Procedure Act, order 1, rule 10(4), order 8, rule 3, order 51, rule 1 of the Civil Procedure Rulesand other enabling provisions of the law.
3. Even though the applicant was directed to serve the other parties, there is no evidence of such service.Be that as it may, and even if it is brought under the wrong provision of law, I find that I should allow this application to expedite the conclusion of this old matter. By allowing the application, no party will suffer any prejudice because the cause of action succeeds the deceased first plaintiff.The court has discretion under order 24, rule 3(2), Civil Procedure Rules to extend the period within which to appoint a legal representative of a deceased plaintiff even where a year has elapsed since the death of such a plaintiff.
4. In this case, I exercise this discretion to progress the case to conclusion.
5. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 20THDAY OF DECEMBER, 2022. M.N. GICHERUJUDGE