[2017] KEELC 1787 (KLR)
The court held that since the suit had already been dismissed on 25/2/2015 and the application to set aside the dismissal was never prosecuted, there was no subsisting suit in which to consider the application for enlargement of time to substitute the deceased 2nd Defendant. Therefore, the application for...
Source-derived case information.
- Citation
- [2017] KEELC 1787 (KLR)
- Parties
- Plaintiff: Stephen Gikonyo Gathugwa; Defendant: Ruaka Sabuni Development Company; Defendant: Njoroge Kamau; Defendant: Rose Njambi Njoroge
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1419 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Enlarge Time for Substitution of Deceased Defendant
- Outcome
- application dismissed
- Judges
- AK Bor
- Legal Topics
- Substitution of Parties, Enlargement of Time, Dismissal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Gikonyo Gathugwa
Plaintiff
Ruaka Sabuni Development Company
Defendant
Njoroge Kamau
Defendant
Rose Njambi Njoroge
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Enlarge Time for Substitution of Deceased Defendant
Legal Issues
- 1 Whether the court should enlarge time to allow substitution of the deceased 2nd Defendant.
- 2 Whether the application for substitution can be considered when the suit has already been dismissed.
Ratio Decidendi
The court held that since the suit had already been dismissed on 25/2/2015 and the application to set aside the dismissal was never prosecuted, there was no subsisting suit in which to consider the application for enlargement of time to substitute the deceased 2nd Defendant. Therefore, the application for enlargement of time was dismissed as the court had no basis to grant it in a dismissed suit.
Court Disposition
application dismissed
Orders
- The application dated 24/11/2016 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
E.L.C. CASE NO. 1419 OF 2016
(FORMERLY HCCC NO. 206 OF 1998)
STEPHEN GIKONYO GATHUGWA........................................PLAINTIFF
VERSUS
RUAKA SABUNI DEVELOPMENT COMPANY.........1ST DEFENDANT
NJOROGE KAMAU....................................................2ND DEFENDANT
RULING
In the application dated 24/11/2016, the Plaintiff seeks to have the time required for substituting the 2nd Defendant who is deceased enlarged. The Plaintiff seeks to have the 2nd Defendant substituted by Rose Njambi Njoroge who is the Administrator of his estate. The application is supported by the Plaintiff’s affidavit in which he states that he learnt of the 2nd Defendant’s death on 9/11/2016. The 2nd Defendant’s advocate swore the replying affidavit. He states that he has tried to get in touch with the family of his deceased client without success and that he therefore has no further instructions to act in the matter.
The court has studied the file and notes that the suit was dismissed on 25/2/2015. The Plaintiff filed the application dated 17/8/2016 seeking to set aside the order for dismissal. That application was never prosecuted. The court need not consider the application for enlargement of time to substitute the 2nd Defendant since the suit stands dismissed. The application dated 24/11/2016 is dismissed with no orders as to costs.
Dated and delivered at Nairobi this 21st September 2017.
K. BOR
JUDGE
In the presence of: -
Mr. Busiega for the Plaintiff
No appearance for the Defendant
Mr. V. Owuor- Court Assistant