[2018] KEELC 1446 (KLR)
The court found that, despite the delay in bringing the application for revival and substitution, the applicants had eventually moved the court and the matter was properly before it. The court emphasized that justice should be administered on the merits of the case rather than on technicalities, particularly in...
Source-derived case information.
- Citation
- [2018] KEELC 1446 (KLR)
- Parties
- Plaintiff: Robert Mukarani Simiti; Plaintiff: Joseph Wandaka; Plaintiff: Fred Wangila; Plaintiff: Barnabas Simiyu Munialo (deceased, to be substituted by Anthony Bulitia Simiyu, Amos Wanjala Simiyu and Sarah Nekesa Simiyu); Defendant: Peter Badhia; Defendant: Peter Wekesa; Defendant: Anne Wekesa; Defendant: Dr. Timothy Pierce
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 105 of 2010
- Procedural Posture
- Land Case / Ruling on Application to Revive Suit and Substitute Plaintiff
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Revival of Suit, Substitution of Parties, Letters of Administration, Land Control Board Consent, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Mukarani Simiti
Plaintiff
Joseph Wandaka
Plaintiff
Fred Wangila
Plaintiff
Barnabas Simiyu Munialo (deceased, to be substituted by Anthony Bulitia Simiyu, Amos Wanjala Simiyu and Sarah Nekesa Simiyu)
Plaintiff
Peter Badhia
Defendant
Peter Wekesa
Defendant
Anne Wekesa
Defendant
Dr. Timothy Pierce
Defendant
Procedural Posture
Land Case / Ruling on Application to Revive Suit and Substitute Plaintiff
Legal Issues
- 1 Whether sufficient cause has been shown to revive the suit after the death of the plaintiff.
- 2 Whether the applicants are proper parties to be substituted as plaintiffs in place of the deceased.
- 3 Whether the delay in bringing the application for revival and substitution is excusable.
Ratio Decidendi
The court found that, despite the delay in bringing the application for revival and substitution, the applicants had eventually moved the court and the matter was properly before it. The court emphasized that justice should be administered on the merits of the case rather than on technicalities, particularly in succession matters where complexities and the involvement of multiple parties are common. The court held that there was no good ground to deny the application, allowed the revival of the suit, permitted the substitution of the deceased plaintiff with the administrators, and granted leave to amend the plaint accordingly.
Court Disposition
application allowed
Orders
- The suit is revived.
- The deceased plaintiff is substituted by Anthony Bulitia Simiyu, Amos Wanjala Simiyu, and Sarah Nekesa Simiyu.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 105 OF 2010
ROBERT MUKARANI SIMITI.................................1ST PLAINTIFF
JOSEPH WANDAKA.................................................2ND PLAINTIFF
FRED WANGILA.......................................................3RD PLAINTIFF
VERSUS
PETER BADHIA......................................................1ST DEFENDANT
PETER WEKESA...................................................2ND DEFENDANT
ANNE WEKESA.....................................................3RD DEFENDANT
DR. TIMOTHY PIERCE.......................................4TH DEFENDANT
R U L I N G
1. The application dated 29/1/2018 and filed in court on 8/3/2018 has been brought by the plaintiff. It seeks the following orders:-
a. That the honourable court be pleased to make an order to revive this suit.
b. That the honourable court be pleased to substitute the plaintiff who is deceased with one Anthony Bulitia Simiyu, Amos Wanjala Simiyu and Sarah Nekesa Simiyu
c. That upon getting prayer No.1 and 2 above the applicants be granted leave further to amend the plaint to reflect the names of the substituted applicants.
2. The applicant has brought the application under Sections 1A, 3, 3A and 63(c) of theCivil Procedure ActandOrder 24 Rules 1 and Order 31 Rulesof theCivil Procedure Rules. The application is supported by the sworn affidavit of the plaintiff.
3. The grounds upon which the application is made are contained at the foot of the application. They are that the plaintiff Barnabas Simiyu Munialo died on 16/8/2015; that Letters of Administration of the Estate of Barnabas Simiyu Munialo were issued to Antony Bulitia Simiyu, Amos Wanjala Simiyu andSarah Nekesa Simiyu on 15/6/2016 and that the claim in the suit is for a declaratory order that the transactions between the plaintiff and the defendants is null and void for want of Land Control Board Consent, eviction, injunction and the cause of actions survived the plaintiff.
4. The sworn affidavit of the Risper Arunga Advocate for the applicant opposed the application dated 29/1/2018 claiming that the applicants have not demonstrated sufficient cause for reviving the suit as they were issued with Letters of Administration within ten months from the date of demise of the deceased but chose to bring the instant application more than two and half years after the demise of the deceased; that the application is incompetent as its supporting affidavit was not sworn by the applicants but by their advocate and that the 1st defendant is deceased and has not been substituted.
5. I have considered the application and the grounds of opposition. The applicants may have delayed but they have finally brought the application and it is before the court. It is normally the duty of a court of law to hear matters and make just determinations based on evidence and on the merits and not on technicalities. Besides the matters that surround a deceased person’s affairs may be complex and beyond comprehension at times as new players enter the arena. It can be seen that there are already more than one person named as the administrator of the estate. Judging by the normal environment families find themselves in when succession matters arise, there may be other persons entitled to beneficial interest in the estate out there whose roles in this matter can not be immediately seen.
6. In view of what has been said above I find no good ground to deny the application dated 29/1/2018. The same is allowed as prayed. The amended plaint reflecting the substitution shall be filed and served within 14 days of this order. The costs thereof shall be in the cause.
Dated, signed and delivered at Kitale on this 24th day of September, 2018.
MWANGI NJOROGE
JUDGE
24/9/2018
Coram: Before Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Bisonga for respondent
Ms. Munialo holding brief for Arunga for the applicant
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
24/9/2018