[2015] KEHC 5855 (KLR)
The court found that the cause of action in this land dispute survived the death of the defendant, as it did not fall within the statutory exceptions. Although the application for substitution was brought more than four years after the defendant's death, the court held that it had discretion under Order 50 rule 6 to...
Source-derived case information.
- Citation
- [2015] KEHC 5855 (KLR)
- Parties
- Plaintiff: Simeon Njeru Difatha; Defendant: Florence Wanja Mwaniki; Defendant: Virginia Rwambe Njoka; Defendant: Joyce Wambiro; Interested Party: Laurencia Wanjuki; Defendant: Elias Mugendi Njeru; Defendant: Catherine Marigu Mwaniki
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 151 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Parties After Death of Defendant
- Outcome
- application for substitution allowed
- Legal Topics
- Substitution of Parties, Abatement of Suit, Enlargement of Time, Survival of Cause of Action, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simeon Njeru Difatha
Plaintiff
Florence Wanja Mwaniki
Defendant
Virginia Rwambe Njoka
Defendant
Joyce Wambiro
Defendant
Laurencia Wanjuki
Interested Party
Elias Mugendi Njeru
Defendant
Catherine Marigu Mwaniki
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Parties After Death of Defendant
Legal Issues
- 1 Whether the cause of action survives the death of the defendant.
- 2 Whether the suit has abated due to the death of the defendant and lapse of time.
- 3 Whether the court has power to enlarge time for substitution after expiry of the statutory period.
Ratio Decidendi
The court found that the cause of action in this land dispute survived the death of the defendant, as it did not fall within the statutory exceptions. Although the application for substitution was brought more than four years after the defendant's death, the court held that it had discretion under Order 50 rule 6 to enlarge the time for substitution. The court determined that it was just and necessary to allow the substitution to enable the matter to proceed on its merits, and that the delay did not preclude the exercise of this discretion. Accordingly, the court granted the application for substitution of the deceased defendant's administrators as parties to the suit.
Court Disposition
application for substitution allowed
Orders
- Elias Mugendi and Catherine Marigu Mwaniki are hereby substituted as the defendants in place of their deceased father Simon Njeru Difatha.
- Costs of this application shall be costs in cause.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
E.L.C. NO 151 OF 2014
FORMERLY KERUGOYA 647 OF 2013
SIMEON NJERU DIFATHA.....................................................PLAINTIFF/RESPONDENT
VERSUS
FLORENCE WANJA MWANIKI.............................................................1st DEFENDANT
VIRGINIA RWAMBE NJOKA................................................................2nd DEFENDANT
JOYCE WAMBIRO................................................................................ 3rd DEFENDANT
AND
LAURENCIA WANJUKI.................................................................INTERESTED PARTY
RULING
Introduction
This is an application by the interested part to substitute Elias Mugendi Njeru and Catherine Marigu Mwaniki as the defendants in place of their late father who died on 3rd March, 2010.
The application is opposed for being bad in law. Additionally, it is also opposed on the ground that the suit has abated.
The Case for the First Plaintiff/Applicant
The applicant has filed this application dated 23rd January, 2015 to which he has annexed the supporting affidavit. According to her affidavit, the defendant Simon Njeru Difatha died on 3rd March, 2010. The children of the deceased namely Elias Mugendi Njeru and Catheline, petitioned and obtained letters of administration of the deceased estate in High Court succession cause number 104 of 2011. she has therefore requested that his children be substituted as the defendants in this case.
She says that it is necessary for the speedy disposal of this suit. The subject matter of the suit is land being land reference number Kagaari/Kanja/397. In that suit, the first applicant on behalf of the co-applicants as seeking that they be declared as the owners of the suit land.
The Case for the Defendants/Respondents:
I have already stated the application is opposed by counsel for the respondents. Counsel of the respondents has filed two grounds of opposition.
Firstly, he submits that the application is bad in law. Secondly he states that the suit has abated. He submitted that in terms of Order 24 rule 4, an application for substitution should be filed within one year of the death of the defendant.
According to him, it is now well over four years since the death of the defendant. On this basis, he submits that substitution is not possible unless an extension of time has been applied for and obtained. He finally urges the court to dismiss the application.
The Applicable Law:
The applicable law in this application is found inSection 2 of the Law Reform Act, Chapter 26 Laws of Kenya. In terms of section 2 of that Act all causes of action that subsist against or vested in a person who has died shall survive against him for the benefit of his estate.
However, there are exceptions to this rule which are set out in the proviso to that section. Causes of action that do not survive the death of a person include defamation, seduction and inducing ones spouse to leave or remain apart from the other spouse. Additionally, claims for damages on the ground of adultery do not survive the death of a person.
Furthermore, according to Order 24 rule 1, the death of a defendant or plaintiff shall not cause the suit to abate if the cause of action survives or continues. Order 50 rule 6 empowers the court to enlarge the time where the time allowed under the rule has expired.
Issues of Determination:
In the light of the foregoing, the following are the issues for determination:
Whether or not the cause of action has survived the death of the deceased.
Whether or not the death of the deceased has led to the abatement of the suit.
Whether or not the court has power to enlarge the time where the time has expired.
Who should pay for the costs of this application.
Evaluation of the Affidavit Evidence Findings and the Law:
I have carefully considered the affidavit evidence and the grounds of opposition by counsel for the respondent. I find from the evidence that the defendant died in 2010. I also find that the cause of action survived his death.
Furthermore, I also find that it is necessary to enlarge the time not withstanding that the application for enlargement was brought after one which is contrary to Order 24 rule 4. Order 24 rule 4 requires that an application for substitution should have been brought within one year of the death of the deceased defendant.
After considering the affidavit evidence, the applicable law and submissions of counsel, I find that the first applicant has made out a case for the grant of order of substitution.
Verdict and Disposal Order:
In the light of the foregoing, I hereby make the following orders:
Elias Mugendi and Catherine Marigu Mwaniki are hereby substituted as the defendants in place of their deceased father Simon Njeru Difatha.
Costs of this application shall be costs in cause.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this..10th ... day of March,..2015
In the presence of Mrs Laurenzia and Mr. Mogusu holding brief for Mr. Kathungu
Court clerk Mr Muriithi
J.M. BWONWONGA
JUDGE