[2021] KEELC 4172 (KLR)
The court found that the respondent, Dinesh Ramji Kotedia, had been declared to lack mental capacity and that Kapildev Dinesh Kotedia and Mitesh Dinesh Kotedia had been duly appointed as his guardians and managers by a competent court. It was not disputed that the suit property was registered in the respondent's...
Source-derived case information.
- Citation
- [2021] KEELC 4172 (KLR)
- Parties
- Applicant: Sarah Nyawira Richard; Applicant: Johnstone Okasinda Opara; Applicant: Zipoorah Wangari Chepkwony; Applicant: Linus Ouma; Applicant: Anthony Muthama Musyoka; Applicant: Elizabeth Mulisya Musyoka; Applicant: Robert Kariuki Wanjiku; Applicant: Nicholas Chelimo Kandie; Applicant: Nelson Habeli Opatia; Applicant: Augustus M. Mutua; Applicant: Purity Wamuyu Gatua; Applicant: Gidion Omare Mbaka; Applicant: Richard Kpkoech Korir; Applicant: Rose Wakarindi; Applicant: Samue K. Tonui; Applicant: Joshpat K. Mutai; Respondent: Dinesh Ramji Kotedia; Respondent: Kapildev Dinesh Kotedia; Respondent: Mitesh Dinesh Kotedia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 120 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons for Substitution and Reopening of Proceedings
- Outcome
- application allowed
- Judges
- LC Komingoi
- Legal Topics
- Adverse Possession, Substitution of Parties, Mental Incapacity, Guardianship, Reopening Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sarah Nyawira Richard
Applicant
Johnstone Okasinda Opara
Applicant
Zipoorah Wangari Chepkwony
Applicant
Linus Ouma
Applicant
Anthony Muthama Musyoka
Applicant
Elizabeth Mulisya Musyoka
Applicant
Robert Kariuki Wanjiku
Applicant
Nicholas Chelimo Kandie
Applicant
Nelson Habeli Opatia
Applicant
Augustus M. Mutua
Applicant
Purity Wamuyu Gatua
Applicant
Gidion Omare Mbaka
Applicant
Richard Kpkoech Korir
Applicant
Rose Wakarindi
Applicant
Samue K. Tonui
Applicant
Joshpat K. Mutai
Applicant
Dinesh Ramji Kotedia
Respondent
Kapildev Dinesh Kotedia
Respondent
Mitesh Dinesh Kotedia
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons for Substitution and Reopening of Proceedings
Legal Issues
- 1 Whether the proceedings should be re-opened to allow further proceedings in respect of the originating summons.
- 2 Whether the respondent should be substituted with his court-appointed guardians due to mental incapacity.
- 3 Whether the guardians should be allowed to participate and file documents in the proceedings.
Ratio Decidendi
The court found that the respondent, Dinesh Ramji Kotedia, had been declared to lack mental capacity and that Kapildev Dinesh Kotedia and Mitesh Dinesh Kotedia had been duly appointed as his guardians and managers by a competent court. It was not disputed that the suit property was registered in the respondent's name. In the interests of justice and to ensure proper representation of the respondent, the court allowed the application to reopen proceedings, substitute the respondent with his guardians, and permit them to participate and file documents in the matter. The court exercised its discretion under the Civil Procedure Rules and the Constitution to ensure fair hearing and...
Court Disposition
application allowed
Orders
- The proceedings herein are re-opened for the purposes of taking further proceedings in respect of the originating summons.
- The respondent is hereby substituted with his guardians, Kapildev Dinesh Kotedia and Mitesh Dinesh Kotedia, and they are allowed to participate in these proceedings.
Full Case Text
Judgment text and source record
54 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO.408 OF 2017 (OS)
IN THE MATTER OF A PORTION OF LAND REFERENCE NUMBER 9042/143 (I.R. NO. 48131)
AND
IN THE MATTER OF AN APPLICATION FOR DECLARATION THAT THE APPLICANTS HAS OBTAINED OWNERSHIP OF THE SUBJECT LAND BY WAY OF ADVERSE POSSESSION
BETWEEN
1. SARAH NYAWIRA RICHARD
2. JOHNSTONE OKASINDA OPARA
3. ZIPOORAH WANGARI CHEPKWONY
4. LINUS OUMA
5. ANTHONY MUTHAMA MUSYOKA
6. ELIZABETH MULISYA MUSYOKA
7. ROBERT KARIUKI WANJIKU
8. NICHOLAS CHELIMO KANDIE
9. NELSON HABELI OPATIA
10. AUGUSTUS M. MUTUA
11. PURITY WAMUYU GATUA
12. GIDION OMARE MBAKA
13. RICHARD KPKOECH KORIR
14. ROSE WAKARINDI
15. SAMUE K. TONUI
16. JOSHPAT K. MUTAI..........APPLICANTS
VERSUS
DINESH RAMJI KOTEDIA...RESPONDENT
RULING
1. This is the Chamber Summons dated 25th November 2019 brought under order 1 rules 10, 12 and 25 of the Civil Procedure Rules and Article 50 of the Constitution of Kenya, 2010.
2. It seeks orders:-
1. Spent.
2. That the proceedings herein be re-opened for the purpose of taking further proceedings in respect of this application and any other application/s filed by the applicants herein.
3. That the respondent herein be substituted with his Guardians, Kapildev Dinesh Kotedia and Mitesh Dinesh Kotedia (the applicants’ herein) and they be allowed to participate in these proceedings.
4. The costs of this application be provided for.
3. The grounds one on the face of the application and set out in paragraphs (1) to (5).
4. The application is supported by the affidavit of Kapildev Dinesh Kotedia and Mitesh Dinesh Kotedia, sworn on the 25th November 2019.
5. The application is opposed. There is a replying affidavit sworn by Sarah Nyawira Richard, the 1st applicant/plaintiff sworn on the 18th February 2020.
6. On the 7th December 2020, the parties intimated to the court that they were relying on the affidavits sworn entirely.
7. I have considered the chamber summons and the supporting affidavit. I have also considered the replying affidavit. The issue for determination is whether this application is merited.
8. In the supporting affidavit, the deponents state in paragraph 3:
“That the respondent lacks mental capacity to manage his affairs as a result of illness, therefore on 21st November 2019, the honourable court in Nairobi High Court (Family Division) Miscellaneous Petition No. 177 of 2019 (In the matter of D.R.K also known as DRMK-A person suffering from mental disorder). By Kapildev Dinesh Kotedia, appointed us the joint guardians and managers of his Estate. We produce hereto as an exhibit, a copy of the order issued on 21st November 2019 marked KDK2”.
9. It is not in dispute that the suit property is registered in the name of the respondent.
10. In the circumstances, I find merit in this application, the same is allowed in the following terms:-
(a) That the proceedings herein are re-opened for the purposes of taking further proceedings in respect of the originating summons.
(b) That the respondent is hereby substituted with his Guardians, Kapildev Dinesh Kotedia and Mitesh Dinesh Kotedia (the applicants herein) and they be allowed to participate in these proceedings.
(c) That the said guardians do put in affidavits in response to the originating summons herein and/or other documents within thirty (30) days from the date of this ruling.
(d) That the cost of this application do abide the outcome of the originating summons.
It is so ordered.
Dated, signed and delivered in Nairobi on this 18th day of February 2021.
L. KOMINGOI
JUDGE
In the presence of:-
No appearance for the Applicant
Mr. Kibet for the Respondents
Phyllis – Court Assistant