[2016] KEHC 5067 (KLR)
The court found that the defendant had died and that the applicant, being his son and having obtained a Limited Grant of Letters of Administration Ad Litem, was a proper person to be substituted in his place. Although the application cited Order 1 Rule 10, the court noted that the correct provision is Order 24,...
Source-derived case information.
- Citation
- [2016] KEHC 5067 (KLR)
- Parties
- Plaintiff: Sarah Cherogony; Defendant: John Kipkemoi arap Rotich (deceased); Applicant: Willy Kipkoech Kirui
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 52 of 2013
- Procedural Posture
- Civil Suit / Ruling on Application for Substitution of Deceased Party
- Outcome
- application allowed
- Judges
- MA Silau
- Legal Topics
- Substitution of Parties, Death of Party, Procedure for Substitution, Grant of Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sarah Cherogony
Plaintiff
John Kipkemoi arap Rotich (deceased)
Defendant
Willy Kipkoech Kirui
Applicant
Procedural Posture
Civil Suit / Ruling on Application for Substitution of Deceased Party
Legal Issues
- 1 Whether the applicant should be substituted in place of the deceased defendant as a party to the suit.
- 2 Whether the application for substitution has followed the correct procedural rules.
Ratio Decidendi
The court found that the defendant had died and that the applicant, being his son and having obtained a Limited Grant of Letters of Administration Ad Litem, was a proper person to be substituted in his place. Although the application cited Order 1 Rule 10, the court noted that the correct provision is Order 24, which specifically deals with substitution of deceased parties. However, since the application was not opposed and the substantive requirements for substitution were met, the court allowed the application. The court made no order as to costs.
Court Disposition
application allowed
Orders
- Willy Kipkoech Kirui is substituted as the defendant in place of the deceased John Kipkemoi arap Rotich.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT KERICHO
CIVIL SUIT NO. 52 OF 2013
SARAH CHEROGONY………………………………….……PLAINTIFF
VERSUS
JOHN KIPKEMOI ARAP ROTICH…….……….........…….DEFENDANT
RULING
(Application for substitution of a deceased party; application not opposed; application allowed)
The application before me is that dated 20 April 2016. It is brought under the provisions of Order 1 rules 10 (2) and 22 of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act, Cap 21, Laws of Kenya. It is filed by counsel for the defendant and seeks orders to have the defendant John Kipkemoi arap Rotich substituted for Willy Kipkoech Kirui. The reason for the application is that the defendant is now deceased. The application is supported by the affidavit of the said Willy Kipkoech Kirui. He has stated that he is the son of the defendant. He has annexed a Certificate of Death which shows that the defendant died on 12 June 2015. He has also annexed a Limited Grant of Letters of Administration Ad Litem, issued in his favour on 30 November 2015.
The application is not opposed by the plaintiff.
I have on my part seen no reason to disallow the application. I only wish to point out that the proper procedure ought to have been that provided for in Order 24, and not Order 1 Rule 10. It is Order 24 which makes provision for substitution of deceased parties. I trust that counsel for the defendant will stand guided in respect of future applications for substitution of a deceased party to a suit.
The application is otherwise allowed. I make no orders as to costs.
It is so ordered.
Dated, Signed and delivered on this 29th day of April, 2016
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
PRESENT:
Mr. Onesmus Langat for the defendant/applicant
Mr. Joshua Mutai for the Plaintiff/respondent