[2019] KEELC 2527 (KLR)
The court found that the applicant had complied with the relevant legal provisions by obtaining letters of administration ad litem for the estate of the deceased defendant and making the appropriate application for revival and substitution. Since the application was unopposed and all procedural requirements were...
Source-derived case information.
- Citation
- [2019] KEELC 2527 (KLR)
- Parties
- Plaintiff: Peter Kirimi J. Ngiti; Defendant: John Ikunda M’Mwereria; Respondent: Alice Karambu Mwendwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 64 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Revival of Suit and Substitution of Deceased Defendant
- Outcome
- application allowed
- Legal Topics
- Abatement of Suit, Substitution of Parties, Revival of Suit, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kirimi J. Ngiti
Plaintiff
John Ikunda M’Mwereria
Defendant
Alice Karambu Mwendwa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Revival of Suit and Substitution of Deceased Defendant
Legal Issues
- 1 Whether the suit should be revived following the death of the defendant.
- 2 Whether Alice Karambu Mwendwa should be enjoined as the legal representative of the deceased defendant.
Ratio Decidendi
The court found that the applicant had complied with the relevant legal provisions by obtaining letters of administration ad litem for the estate of the deceased defendant and making the appropriate application for revival and substitution. Since the application was unopposed and all procedural requirements were met, the court allowed the application, reviving the suit and substituting Alice Karambu Mwendwa as the legal representative of the deceased defendant. The court exercised its discretion under Order 24 rule 4(1) of the Civil Procedure Rules and the Civil Procedure Act to ensure the matter could proceed to determination on its merits.
Court Disposition
application allowed
Orders
- The suit is revived.
- Alice Karambu Mwendwa is enjoined as the legal representative of the deceased defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 64 OF 2012 (OS)
PETER KIRIMI J. NGITI....................................PLAINTIFF
VERSUS
JOHN IKUNDA M’MWERERIA...................DEFENDANT
RULING
1. Before me is an application dated 14. 1.2019 brought pursuant to provisions of order 24 rules 4 (1) and order 51 rules 1, 3 and 4 of the civil procedure rules, 2010, sections 1A, 3A and 63 € of the Civil Procedure Act, Cap 21, Laws of Kenya and Articles 25 (c), 50 (1) and 159 of the constitution of Kenya”. The applicant desires that this suit be revived and that one Alice Karambu Mwendwa be enjoined in this case to substitute the deceased defendant.
2. The application is anchored on the grounds on the face of the application and in the affidavit of the applicant.
3. Applicant avers that the case abated upon the death of defendant but applicant has since obtained letters of administration ad litem, which he has availed to this court.
4. I have considered all the arguments raised herein including the submissions of the applicant. I note that the application is unopposed. I also note that applicant has the limited grant in respect of the estate of deceased defendant.
5. Order 24 rule 4 (1) of the Civil Procedure Rules provide that:
“Where one of two or more defendant’s 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”.
6. I find that applicant has complied with the aforementioned provisions of law and procedure. In the circumstances the application dated 14. 1.2019 is allowed with no orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 10TH DAY OF JULY, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Muchiri for plaintiff/applicant
HON. LUCY. N. MBUGUA
ELC JUDGE