[2023] KEELC 18624 (KLR)
The court found that although the application for substitution of the deceased 3rd defendant was filed more than one year after his death and after the grant ad litem was obtained, and no satisfactory explanation for the delay was provided, the interests of justice required that the abated suit be revived and the...
Source-derived case information.
- Citation
- [2023] KEELC 18624 (KLR)
- Parties
- Plaintiff: Maria Nyansarora Orina; Defendant: Julius Ngubo Nyabicha & 18 others; Applicant: Lydia Kwamboka Songoro
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 463 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Deceased Defendant
- Outcome
- Application for substitution of the deceased 3rd defendant allowed; abated suit revived; applicant substituted as legal representative; no order as to costs.
- Judges
- M Sila
- Legal Topics
- Substitution of Parties, Revival of Abated Suit, Land Title Nullification, Death of Defendant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maria Nyansarora Orina
Plaintiff
Julius Ngubo Nyabicha & 18 others
Defendant
Lydia Kwamboka Songoro
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Deceased Defendant
Legal Issues
- 1 Whether the applicant should be allowed to substitute the deceased 3rd defendant in the ongoing suit.
- 2 Whether the suit against the 3rd defendant, which had abated due to death, should be revived.
- 3 Whether the delay in filing the substitution application after obtaining the grant ad litem is justified.
Ratio Decidendi
The court found that although the application for substitution of the deceased 3rd defendant was filed more than one year after his death and after the grant ad litem was obtained, and no satisfactory explanation for the delay was provided, the interests of justice required that the abated suit be revived and the substitution allowed. The cause of action persisted against the deceased's estate as the plaintiff sought nullification of a land title registered in the deceased's name. Without substitution, the plaintiff would be unable to proceed against the title. Therefore, the court exercised its discretion under Order 24 Rule 7 of the Civil Procedure Rules to revive the suit and permit...
Court Disposition
Application for substitution of the deceased 3rd defendant allowed; abated suit revived; applicant substituted as legal representative; no order as to costs.
Orders
- The abated suit against the 3rd defendant is revived.
- Lydia Kwamboka Songoro is substituted as the 3rd defendant in place of the deceased Isaac Ouru Songoro.
Full Case Text
Judgment text and source record
24 paragraphs
Orina v Nyabicha & 18 others (Environment & Land Case 463 of 2016) [2023] KEELC 18624 (KLR) (12 July 2023) (Ruling)
Neutral citation: [2023] KEELC 18624 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisii
Environment & Land Case 463 of 2016
M Sila, J
July 12, 2023
Between
Maria Nyansarora Orina
Plaintiff
and
Julius Ngubo Nyabicha & 18 others
Defendant
Ruling
Application for substitution of the deceased 3rd defendant; application allowed 1. The application before me is that dated 12 June 2023 filed by Lydia Kwamboka Songoro, who seeks orders that she be allowed to substitute the deceased 3rd defendant, one Isaac Ouru Songoro. In the supporting affidavit, the applicant avers to be the widow of the deceased who died on 19 March 2022. She has annexed a grant of letters ad litem which she obtained.
2. I have gone through the record and I observe that the suit herein was commenced through a plaint which was filed on 29 June 2011 against 19 defendants. The plaintiff pleaded to have been the registered proprietor of the land parcel South Mugirango/Bogetenga/2007. It is claimed that the 1st defendant alongside the other defendants, caused this land to be subdivided into 22 portions. The 3rd defendant was said to own one of the subdivisions which is the parcel South Mugirango/Bogetenga/2722. In the plaint, the plaintiff seeks orders for the nullification of these subdivisions. The defendants filed a joint statement of defence refuting the plaintiff’s claim. The status of the suit is that it is partly heard with the plaintiff having given evidence.
3. Though the application herein is said to be brought pursuant to Order 1 Rule 10, the applicable law is clearly Order 24 Rule 4 of theCivil Procedure Ruleswhich provides as follows :-Order 24 Rule 4, Procedure in case of death of one of several defendants or of sole defendant(1)Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.(2)Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.(3)Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant.
4. From the above, it will be seen that a deceased defendant may be substituted if the cause against him survives his death. In our case, the cause of action persists despite the death of the 3rd defendant as the plaintiff wishes to nullify the title which is registered in his name. The only issue is that an application for substitution ought to be made within one year of death, and indeed, Mr. Momanyi, learned counsel for the plaintiff did point this out when the application came up for inter partes hearing. The rejoinder of Mr. Sagwe was that there was delay in obtaining the grant.
5. The reason does not quite wash as I see that the grant ad litem was obtained on 8 December 2022 yet this application was filed on 13 June 2023, more than 6 months thereafter. I do not think that good reason has been given for the late substitution.
6. Despite no good reason having been given, I think it would be just that I revive the abated suit, under Order 24 Rule 7, and allow the substitution of the deceased 3rd defendant. Without the substitution, even the plaintiff would be handicapped in proceeding against the title held in the name of the 3rd defendant.
7. I therefore revive the abated suit against the 3rd defendant and allow the applicant to substitute him. I do not see the need to amend the pleadings, but let it be noted that the suit against the 3rd defendant will be continued against the applicant as the legal representative ad litem.
8. I make no orders as to the costs of this application.
9. Orders accordingly.
DATED AND DELIVERED AT KISII THIS 12 DAY OF JULY 2023JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTAT KISII