[2017] KEELC 2139 (KLR)
The court found the application for substitution meritorious and unopposed. The applicant demonstrated she is the legal representative of the deceased plaintiff and that the inhibition on the land parcel persisted despite settlement of the costs that gave rise to it. The delay in seeking substitution was explained...
Source-derived case information.
- Citation
- [2017] KEELC 2139 (KLR)
- Parties
- Appellant: Purana Niga; Respondent: Ashford Njoka; Applicant: Gladys Cianjau Borana
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 55 of 1980
- Procedural Posture
- Civil Appeal / Ruling on Substitution Application
- Outcome
- Application allowed with costs in the cause.
- Legal Topics
- Substitution of Parties, Removal of Inhibition, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Purana Niga
Appellant
Ashford Njoka
Respondent
Gladys Cianjau Borana
Applicant
Procedural Posture
Civil Appeal / Ruling on Substitution Application
Legal Issues
- 1 Whether the applicant should be substituted as plaintiff in place of the deceased for purposes of removing the inhibition on the land parcel.
- 2 Whether the continued existence of the inhibition is justified after settlement of costs.
- 3 Whether the delay in filing the application for substitution is excusable.
Ratio Decidendi
The court found the application for substitution meritorious and unopposed. The applicant demonstrated she is the legal representative of the deceased plaintiff and that the inhibition on the land parcel persisted despite settlement of the costs that gave rise to it. The delay in seeking substitution was explained and not deliberate, as the applicant only became aware of the inhibition when attempting to distribute the estate. No prejudice would be caused to any party by granting the application. The court exercised its discretion under Order 24 of the Civil Procedure Rules to allow substitution, enabling the applicant to pursue removal of the inhibition and facilitate distribution of the...
Court Disposition
Application allowed with costs in the cause.
Orders
- The application dated 11th April 2017 is allowed.
- Gladys Cianjau Borana is substituted as plaintiff in place of the deceased.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
CIVIL APPEAL NO 55 OF 1980
PURANA NIGA ..........................................................................APPELANT
VERSUS
ASHFORD NJOKA ...................................................................RESPONDENT
GLADYS CIANJAU BORANA........................................................APPLICANT
R U L I N G
1. The Notice of Motion dated 11th April, 2017 seeks the following orders:-
(1) That this Court be pleased to certify this application urgent and that service of the same be dispensed with.
(2) That this Honorable Court be pleased to substitute the Plaintiff who is deceased with GLADYS CIANJAU BORANA.
(3) That cost of this application be in cause.
2. The Application is supported by the Affidavit of Gladys Borana Cianjau sworn on 11th day of April, 2017 and has the following grounds:-
(1) That the Plaintiff herein filed suit against the defendant which suit was determined in favor of the plaintiff.
(2) That the defendant appealed and the appeal was allowed with costs.
(3) That before the plaintiff could pay the said costs the defendant/ respondent attached the plaintiff's parcel of land LR KARINGANI/MUGIRERWA/42 and placed an inhibition on the said parcel.
(4) That the plaintiff subsequently paid the costs thus settling the matter.
(5) That despite the matter being settled, the orders of inhibition still exist and are hindering her from distributing the land to the lawful heirs.
(6) That applicant is the legal representative of the estate of the Plaintiff who died on the 22nd day of January, 1990, ( See copy of the grant).
(7) That applicant would like to be substituted in place of the plaintiff for purposes of having the inhibition removed.
(8) That the delay in filing this application was not deliberate but was caused by the fact that applicant did not know that the land was inhibited until recently when she wanted to distribute the deceased's estate and learnt from the registry that the said parcel has a restriction.
(9) That no prejudice will be caused to any party if the application is allowed.
(10) That in the premises applicant urges the court to allow her application.
3. I find that the application is unopposed and the same is meritorious.
4. The application dated 11:04:17 is allowed with costs in the cause.
DELIVERED, DATED AND SIGNED AT MERU THIS 12TH DAY OF JULY, 2017 IN THE PRESENCE OF:
C:A Janet
J.M. Waigi h/b for Nelima & associates for Applicant.
HON. L. N. MBUGUA
ELC JUDGE