[2018] KEELC 3235 (KLR)
The court found that the 1st Interested Party, Mutua Mugambi Arewa, had died and that the cause of action survived him. The applicant, Wilfred Kithinji Magambo, produced a death certificate and a grant Ad litem authorizing him to act as the legal representative of the deceased. There was no opposition to the...
Source-derived case information.
- Citation
- [2018] KEELC 3235 (KLR)
- Parties
- Applicant: Republic; Respondent: Minister of Lands, Housing, Physical Planning & Settlement; Respondent: District Land Adjudication & Settlement Officer Meru South/Maara Sub County; Respondent: Honourable Attorney General; Interested Party: Mutua Mugambi Arewa (deceased) / Wilfred Kithinji Magambo (substituted); Interested Party: Weru Tea Factory Company Limited; Applicant: Gilbert Muchiri Ngaine
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 02 of 2018
- Procedural Posture
- Judicial Review Application / Ruling on Substitution Application
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Party Substitution, Death of Party, Land Adjudication, Judicial Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Minister of Lands, Housing, Physical Planning & Settlement
Respondent
District Land Adjudication & Settlement Officer Meru South/Maara Sub County
Respondent
Honourable Attorney General
Respondent
Mutua Mugambi Arewa (deceased) / Wilfred Kithinji Magambo (substituted)
Interested Party
Weru Tea Factory Company Limited
Interested Party
Gilbert Muchiri Ngaine
Applicant
Procedural Posture
Judicial Review Application / Ruling on Substitution Application
Legal Issues
- 1 Whether the court should allow substitution of the deceased 1st Interested Party with his legal representative.
- 2 Whether the cause of action survives the deceased for purposes of substitution.
Ratio Decidendi
The court found that the 1st Interested Party, Mutua Mugambi Arewa, had died and that the cause of action survived him. The applicant, Wilfred Kithinji Magambo, produced a death certificate and a grant Ad litem authorizing him to act as the legal representative of the deceased. There was no opposition to the application for substitution from any party. The court held that, in accordance with Order 24 of the Civil Procedure Rules and the Law of Succession Act, substitution was appropriate and necessary to ensure the matter could proceed on its merits. The application was therefore allowed, with costs to be in the cause, and the substituted party was granted seven days to file and exchange...
Court Disposition
application allowed
Orders
- Wilfred Kithinji Magambo is substituted as the 1st Interested Party in place of Mutua Mugambi Arewa (deceased).
- Costs to be in the cause.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC JUDICIAL REVIEW APPLICATION CASE NO. 02 OF 2018
REPUBLIC..............................................................................APPLICANT
VERSUS
MINISTER OF LANDS, HOUSING,
PHYSICALPLANNING & SETTLEMENT............1ST RESPONDENT
DISTRICT LAND ADJUDICATION &
SETTLEMENT OFFICER MERU
SOUTH/MAARA SUB COUNTY.............................2ND RESPONDENT
THE HONOURABLE ATTORNEY GENERAL....3RD RESPONDENT
MUTUA MUGAMBI AREWA.............................INTERESTED PARTY
WERU TEA FACTORY
COMPANY LIMITED..................................2ND INTERESTED PARTY
GILBERT MUCHIRI NGAINE......................EX-PARTE APPLICANT
RULING
1. This application is dated 23rd May, 2018. It seeks the following orders:
1. The honourable court be pleased to substitute Mutua Mugambi Arewa (deceased) with his son Wilfred Kithinji Magambo the 1st Interested Party herein.
2. Costs be in the cause.
2. The application has the following ground:
(a) The 1st Interested Party is deceased and needs to be substituted.
3. The application is supported by the affidavit of Wilfred Kithinji Magambo sworn on 23rd May, 2018 which states as follows:
“I, WILFRED KITHINJI MAGAMBO, of Post Office Box 82, MAGUTUNI in the Republic of Kenya hereby make oath and state as follows:
1. That I am the applicant herein hence competent to swear this oath.
2. That the 1st Interested Party herein is my father (deceased).
3. That he died on 5. 5.2018 (Annexed and marked “W K M 1” is a copy of death certificate of Mutua Mugambi Arewa (Deceased).
4. That the cause of action survives the deceased hence the need to substitute the deceased as a party.
5. That I have obtained the grant Ad litem to be joined as a party – 1st Interested Party in the instant suit (Annexed and marked “W K M 1” is a copy of the grant) permitting the substitution of the 1st Interested Party.
6. That what is deponed to herein is true to the best of my knowledge belief, and information.
4. When the application was heard Interpartes on 23rd May, 2018, Mr. Mutani, the applicant’s advocate moved the court to allow the application. This prayer was not opposed by the other parties who were present in court.
5. In the circumstances, this application is allowed with costs to be in the cause.
6. The 1st Interested Party is granted 7 days to file and exchange necessary responses.
7. Parties will come to court for directions on 14. 6.2018.
8. It is so ordered.
Delivered in open court at Chuka this 23rd day of May, 2018 in the presence of:
CA: Ndegwa
I.C. Mugo for the Exparte Applicant
Mutani for the 1st Interested Party
Muriithi for the 2nd Interested party
P. M. NJOROGE
JUDGE