[2011] KEHC 496 (KLR)
The court found that the applicant had complied with the requirements of Order 24 Rules 1 and 4 of the Civil Procedure Rules by making the application for substitution after the death of the respondent and after the issuance of letters of grant ad litem. There was no opposition to the application, and the court was...
Source-derived case information.
- Citation
- [2011] KEHC 496 (KLR)
- Parties
- Appellant: Stephen Kiiru Mutuva; Respondent: Jane Waithera Mungai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 253 of 2002
- Procedural Posture
- Civil Appeal / Application for Substitution of Deceased Party
- Outcome
- application granted
- Legal Topics
- Substitution of Parties, Death of Party, Order 24 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kiiru Mutuva
Appellant
Jane Waithera Mungai
Respondent
Procedural Posture
Civil Appeal / Application for Substitution of Deceased Party
Legal Issues
- 1 Whether the applicant should be granted leave to substitute the deceased respondent with a legal representative under Order 24 Rules 1 and 4 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicant had complied with the requirements of Order 24 Rules 1 and 4 of the Civil Procedure Rules by making the application for substitution after the death of the respondent and after the issuance of letters of grant ad litem. There was no opposition to the application, and the court was satisfied that it was just and proper to allow the substitution to enable the matter to proceed. The application was therefore granted, and leave was given to the applicant to come on record as the legal representative of the deceased respondent.
Court Disposition
application granted
Orders
- Leave is granted to the applicant to be substituted as the legal representative of the deceased respondent.
Full Case Text
Judgment text and source record
63 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 253 OF 2002
STEPHEN KIIRU MUTUVA.............................................................................APPELLANT/ORIGINAL/DEFENDANT
VERSUS
JANE WAITHERA MUNGAI..........................................................................RESPONDENT/ORIGINAL PLAINTIFF
Editorial Summary
1. Civil Appeal
2. Civil Practice and Procedure
3. Subject of Subordinate Court Case
RESTITUTION
3. 1 Respondent/original plaintiff
Distressed over alleged debt owed and or
Misappropriated
3. 2 sued appellant/original defendant in
Subordinate court
3. 3 Judgment for respondent 30th April 2002
3. 4 appellant original defendant appeals on
29th May 2002 to the High Court
3. 5 appeal dismissed suit later set aside
8th December 2004
3. 6 since 1992, no lower court record
3. 7 On 18th September 2010
Respondent original plaintiff passes away
4. Application 12th July 2011
Order 24 r 1 and 4 Civil Procedure Rules to
Substitute the deceased with a legal representation
Respondent served
5. Held:
Application granted.
6. Case Law:
7. Advocates:
i)C M Ngugi instructed by M/s Wachira Nderitu & Ngugi & Co Advocates for appellant
ii)M/s Mutua Mbugua & Co Advocates for respondent absent
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 253 OF 2002
STEPHEN KIIRU MUTUVA.............................................................................APPELLANT/ORIGINAL/DEFENDANT
VERSUS
JANE WAITHERA MUNGAI..........................................................................RESPONDENT/ORIGINAL PLAINTIFF
(Being an appeal from the entire judgment of the Resident Maigstrate Thika, Mr Ngari dated 30th April 2002 in Civil Case No. 1086 of 2002)
RULING
Application To Substitute Deceased with a Legal Representation
I.BACKGROUND
1. The respondent/original plaintiff filed suit in the subordinate court on 26th October 2001. She sued the appellant/original defendant for restitution on grounds that she had been wrongly distressed when all her goods were attached and sold.
2. The trial magistrate entered judgment for the respondent/original plaintiff on the 30th April 2002.
3. Being dissatisfied with the judgment of the subordinate court, the said appellant/original defendant filed appeal to this High Court on
29th May 2002. The appeal was dismissed by Visram J but was later set aside on 8th December 2005.
4. Since 2002, no action had been taken on this matter. No lower court file had been brought to this High Court.
5. Unfortunately on the 18th September 2010 the respondent original plaintiff passed away.
IIAPPLICATION OF 12TH JULY 2011
6. Under Order 24 r (1) and (4) Civil Procedure Rules, the advocate for the appellant prayed that the appellant herein be substituted in place of the deceased, as a legal representation.
7. The deceased passed away on the 18th September 2010 and letters of grant al Litum were duly issued.
8. The appellant/original defendants were served through their advocates and are absent.
IIIFINDINGS
9. The application is hereby granted. Leave be is hereby granted to the applicant to come or record on behalf of the deceased as a legal representative.
DATED THIS 30TH DAY OF SEPTEMBER 2011 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i)Z. J. Mohammed instructed by M/s Archer & Wilcox & Co Advocates for the Appellant
ii)A.M. Simiyui instructed by M/s Musyoka Wambua & Co Advocates for the 2nd Respondent
iii)F S Macharia instructed by the firm of Mungai Kalande & Co Advocates for the 1st respondent