[2017] KEELC 2687 (KLR)
The court found that the cause of action in the suit survives the deceased plaintiff and that Jared Momanyi Mose, as the legal representative with letters of administration ad litem, is entitled to be substituted as plaintiff. The application was made in accordance with the relevant provisions of the Civil Procedure...
Source-derived case information.
- Citation
- [2017] KEELC 2687 (KLR)
- Parties
- Plaintiff: Stephen Boke Ongaki; Defendant: Richard Makori; Defendant: Haron Mochama; Defendant: Joseph Mokua; Applicant: Jared Momanyi Mose
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 373 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Substitution of Plaintiff Due to Death
- Outcome
- application allowed
- Legal Topics
- Substitution of Parties, Survival of Cause of Action, Letters of Administration, Land Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Boke Ongaki
Plaintiff
Richard Makori
Defendant
Haron Mochama
Defendant
Joseph Mokua
Defendant
Jared Momanyi Mose
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Substitution of Plaintiff Due to Death
Legal Issues
- 1 Whether the cause of action survives the deceased plaintiff and can be continued by his legal representative.
- 2 Whether Jared Momanyi Mose should be substituted as the plaintiff in place of the deceased.
- 3 Whether the application for substitution meets the requirements under the Civil Procedure Rules.
Ratio Decidendi
The court found that the cause of action in the suit survives the deceased plaintiff and that Jared Momanyi Mose, as the legal representative with letters of administration ad litem, is entitled to be substituted as plaintiff. The application was made in accordance with the relevant provisions of the Civil Procedure Rules, and there was no substantive opposition from the defendants. The court exercised its discretion to allow the substitution to ensure the matter proceeds to determination on its merits. The orders sought were granted as prayed, and directions were given for compliance with pre-trial procedures.
Court Disposition
application allowed
Orders
- Jared Momanyi Mose is substituted as plaintiff in place of the deceased Stephen Boke Ongaki.
- Parties to comply with Order 11 Civil Procedure Rules, 2010 within 45 days from the date of the ruling.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT AT KISII
CASE NO. 373 OF 2014
STEPHEN BOKE ONGAKI ………………………...………...….. PLAINTIFF
VERSUS
RICHARD MAKORI ……………………………..………... 1ST DEFENDANT
HARON MOCHAMA …………………………………….... 2ND DEFENDANT
JOSEPH MOKUA ……………………………....………..... 3RD DEFENDANT
RULING
1. An application by way of Chamber summons dated 28th March 2017 was brought under certificate of urgency pursuant to Order 1 Rule 14 and Order 24 Rule 3 of the Civil Procedure Rules, 2010 by Mr. Okenye counsel for the plaintiff/applicant. The orders sought are:
(1)That this application be certified urgent.
(2)That one Jared Momanyi Mose who is legal representative of the deceased plaintiff be substituted as plaintiff and made a party in this case.
(3)That the costs be in the cause.
2. The application is based on grounds (1) to (6) of the face of it. The grounds are:
1. THAT the cause of action in this suit survives or continues.
2. THAT one, Jared Momanyi is desirous of continuing with the case to its conclusion as soon as practicable.
3. THAT for the good ends of justice the deceased plaintiff’s name should be substituted by the said legal representative.
4. THAT the said deceased plaintiff died on 7th June 2015 before the case was heard and determined.
5. The deceased plaintiff was the father of the applicant herein.
6. THAT the subject matter in this case is land parcel No. East Kitutu/ Mwamang’era/181 in which the applicant lives.
3. The following documents are in support of the application:
(a)A supporting affidavit of 10 paragraphs sworn by the plaintiff/ applicant
(b)Letters of administration Ad Litem issued on 29th December 2016 in Kisii CMC Succession Cause No. 596 of 2016.
4. The 1st defendant is represented by counsel. Order 1 Rules 1 and 14 and Order 24 Rule 3, Civil Procedure Rules, 2010 allow a party to be enjoined to a suit as a plaintiff; See Francis –vs- King & Another [2009] 519 KLR at pg 523. I find that the application has merit and I allow orders 1 to 3 sought therein.
5. Consequently, I make the following orders:-
(a)The parties to comply with Order 11 Civil Procedure rules, 2010 within the next 45 days from the date hereof.
(b)The parties to be notified accordingly.
(c)Mention before the Deputy Registrar Environment and Land Court, Kisii on 20th July 2017 to confirm compliance and for directions.
G. M. A. ONGONDO
JUDGE - MIGORI
(SITTING AT KISII ELC SERVICE WEEK)
Ruling delivered, signedanddatedin open courtatKisii this18th day of May, 2017.
G. M. A. ONGONDO
JUDGE - MIGORI
(SITTING AT KISII ELC SERVICE WEEK)
In the presence of:
Mr. Okenye for the applicant
N/A for the defendant
Ruth, court assistant