[2003] KEHC 689 (KLR)
The court held that the cause of action for adverse possession, being based on real property, survives the death of the plaintiff. The application for substitution was made within the prescribed time, and there was no abatement of the suit. The application for substitution was therefore proper and granted. Issues...
Source-derived case information.
- Citation
- [2003] KEHC 689 (KLR)
- Parties
- Plaintiff: Simon Mwiruti J. Mbugua; Applicant: Bernard Wamenju Kabuga; Defendant: John Kihenjo Kangethe; Defendant: James Mambo Kangethe
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2534 of 1994
- Procedural Posture
- Civil Case / Ruling on Application for Substitution of Plaintiff Due to Death
- Outcome
- Application for substitution of plaintiff granted with costs.
- Judges
- AI Hayanga
- Legal Topics
- Substitution of Parties, Adverse Possession, Abatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Mwiruti J. Mbugua
Plaintiff
Bernard Wamenju Kabuga
Applicant
John Kihenjo Kangethe
Defendant
James Mambo Kangethe
Defendant
Procedural Posture
Civil Case / Ruling on Application for Substitution of Plaintiff Due to Death
Legal Issues
- 1 Whether the suit abated upon the death of the original plaintiff.
- 2 Whether the cause of action for adverse possession survives the death of the plaintiff.
- 3 Whether the application for substitution was made within the prescribed time.
Ratio Decidendi
The court held that the cause of action for adverse possession, being based on real property, survives the death of the plaintiff. The application for substitution was made within the prescribed time, and there was no abatement of the suit. The application for substitution was therefore proper and granted. Issues regarding the competence of the case are to be determined at the hearing based on evidence.
Court Disposition
Application for substitution of plaintiff granted with costs.
Orders
- The application for substitution of the plaintiff is granted.
- Costs of the application awarded to the applicant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 2534 OF 1994 (OS)
SIMON MWIRUTI J. MBUGUA………………….……..……..PLAINTIFF V E R S U S JOHN KIHENJO KANGETHE…………….…………...1ST DEFENDANT JAMES MAMBO KANGETHE…………………..……..2ND DEFENDANT
R U L I N G
This is an application under Order 23 Rules 1, 3 12 of the Civil Procedure Rules for substitution of Plaintiff with one Bernard Wamenju Kabuga as Plaintiff. The original Plaintiff died on 3. 6.2002 but the Applicant says the cause of action survives and the suit has not abated hence the application for substitution but the Respondent/Defendant says the application is incompetent and defective and ought to be dismissed and that the cause of action does not survive.
Order 23 (1) of Civil Procedure Rules states that:
- “The death of a plaintiff or a defendant shall not cause the suit to abate if the cause of action survives or continues”
and Rule(3)(1) thereof says that where a Plaintiff dies and the cause of action survives the Court will cause “on application” made in that behalf, a legal representative of the deceased Plaintiff to be made a party and shall proceed with the suit provided the application is made within 1 year.
This is a suit regarding adverse possession of L.R. No. LIMURU/NGECHA/T.38. It is my belief that rights based on real property in favour of any person in a suit continues to exist against a legal representative of a deceased party to the suit. Normally it is personal actions like defamation that abate at death.
This is a case where there is no abatement and the application having been made timeously is proper. The points affecting the competence of the case can only be decided on evidence at a hearing.
Application is granted with costs.
DELIVERED at Nairobi this 25th day of July 2003
A.I. HAYANGA
JUDGE
Read to Kithunyi for Applicant
No appearance for Respondent
Court Ruling Read
A.I. HAYANGA
JUDGE