[2022] KEELC 307 (KLR)
The court found that the 6th plaintiff, Japhet Marangu, was already deceased at the time the suit was filed, and the documents purporting to authorize his participation were false. Since Order 24 Rule 2 of the Civil Procedure Rules only applies where a party dies during the pendency of a suit, and not before its...
Source-derived case information.
- Citation
- [2022] KEELC 307 (KLR)
- Parties
- Plaintiff: Thomas Mungiira; Plaintiff: Thomas Mugiira Lichoro (Suing as personal representative of Jacob Mitheu); Plaintiff: Joshua Mwangi Kamau (Suing as personal representative of Kamau Githongi); Plaintiff: Jacob Kaleria M’Amuru (Suing as representative of Stephen M’Amuru); Plaintiff: Jonanina Impwi (Suing as representative of John Thikanyi); Plaintiff: Japhet Marangu; Plaintiff: Samuel Liburu; Plaintiff: Chebere Aruaki; Plaintiff: Kiragu Kamuiru; Plaintiff: Mwangi Marathi; Plaintiff: Julius Gikonyo Gachuhi (Suing as personal representative of Gachuhi Kamwangi); Defendant: Joseph Mutuma; Defendant: The District Land Adjudication Officer; Defendant: The Hon. Attorney General; Interested Party: Bearnard Muthomi Meme; Applicant: Mary Philomena Marangu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 12 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Deceased Plaintiff
- Outcome
- application dismissed with costs
- Legal Topics
- Substitution of Parties, Abatement of Suit, Fraud in Land Disputes, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Mungiira
Plaintiff
Thomas Mugiira Lichoro (Suing as personal representative of Jacob Mitheu)
Plaintiff
Joshua Mwangi Kamau (Suing as personal representative of Kamau Githongi)
Plaintiff
Jacob Kaleria M’Amuru (Suing as representative of Stephen M’Amuru)
Plaintiff
Jonanina Impwi (Suing as representative of John Thikanyi)
Plaintiff
Japhet Marangu
Plaintiff
Samuel Liburu
Plaintiff
Chebere Aruaki
Plaintiff
Kiragu Kamuiru
Plaintiff
Mwangi Marathi
Plaintiff
Julius Gikonyo Gachuhi (Suing as personal representative of Gachuhi Kamwangi)
Plaintiff
Joseph Mutuma
Defendant
The District Land Adjudication Officer
Defendant
The Hon. Attorney General
Defendant
Bearnard Muthomi Meme
Interested Party
Mary Philomena Marangu
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Deceased Plaintiff
Legal Issues
- 1 Whether the court should allow substitution of the deceased 6th plaintiff with the applicant.
- 2 Whether the suit was fatally defective for including a plaintiff who was already deceased at the time of filing.
- 3 Whether the cause of action survived or was extinguished due to the death and passage of time.
Ratio Decidendi
The court found that the 6th plaintiff, Japhet Marangu, was already deceased at the time the suit was filed, and the documents purporting to authorize his participation were false. Since Order 24 Rule 2 of the Civil Procedure Rules only applies where a party dies during the pendency of a suit, and not before its institution, the application for substitution was fundamentally misconceived. The inclusion of a deceased person as plaintiff rendered the suit incurably defective as to that party, and the cause of action, being based on alleged fraud in 2009, was also time-barred. The court held that it could not cure such a fundamental defect and dismissed the application for substitution with...
Court Disposition
application dismissed with costs
Orders
- The application for substitution of the 6th plaintiff is dismissed with costs.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 12 OF 2010
THOMAS MUNGIIRA.............................................................................................................................1ST PLAINTIFF
THOMAS MUGIIRA LICHORO (Suing as personal representative of JACOB MITHEU) ............. 2ND PLAINTIFF
JOSHUA MWANGI KAMAU (Suing as personal representative of KAMAU GITHONGI) ............ 3RD PLAINTIFF
JACOB KALERIA M’AMURU (Suing as representative of STEPEHN M’AMURU)......................4TH PLAINTIFF
JONANINA IMPWI (Suing as representative ofJOHN THIKANYI)................................................ .5TH PLAINTIFF
JAPHET MARANGU .............................................................................................................................6TH PLAINTIFF
SAMUEL LIBURU ................................................................................................................................ 7TH PLAINTIFF
CHEBERE ARUAKI ............................................................................................................................. 8TH PLAINTIFF
KIRAGU KAMUIRU ............................................................................................................................ 9TH PLAINTIFF
MWANGI MARATHI ........................................................................................................................ 10TH PLAINTIFF
JULIUS GIKONYO GACHUHI (Suing as personal representative of GACHUHI KAMWANGI...11TH PLAINTIFF
VERSUS
JOSEPH MUTUMA ............................................................................................................................1ST DEFENDANT
THE DISTRICT LAND ADJUDICATIONOFFICER....................................................................2ND DEFENDANT
THE HON. ATTORNEY GENERAL ...............................................................................................3RD DEFENDANT
BEARNARD MUTHOMI MEME ............................................................................................INTERESTED PARTY
MARY PHILOMENA MARANGU............................................................................................................APPLICANT
RULING
1. The court is asked to allow Mary Philomena Marangu a legal representative of the 6th plaintiff now deceased to join the suit. The application is based on a supporting affidavit of the proposed plaintiff sworn on 17. 12. 2021 sating the 6th plaintiff died on 21. 6.2000 as per the attached death certificate and confirmation of grant issued on 19. 7.2004.
2. The application is opposed by the defendants through a replying affidavit sworn by the 1st defendant on 23. 12. 2021 on the basis that the plaintiffs failed to disclose material facts at the time they filed the suit since all the facts alluded to in the two annexures occurred long before the suit was filed hence the suit was incurably defective, non-starter and cannot be regularized.
3. Order 24 Rule 2 of the Civil Procedure Rules relates to case where a plaintiff dies during a subsisting suit and a cause of action survives or continues to the surviving plaintiff alone with the application being made within a year after the death, failure of which the suit abates. In this case, the 6th plaintiff is alleged to have died almost a year before the suit was filed.
4. In the plaint dated 3. 2.2010 at paragraph 6, he is described as an adult of sound mind residing in Tigania District and at paragraphs 15 and 16, as the owner of Parcel No. 1787.
5. In the verifying affidavit, the 1st plaintiff swore that the 6th plaintiff had authorized him to swear to the facts. Similarly, the consent to sue dated 22. 12. 2009 was issued to him alongside the other plaintiffs.
6. Additionally, the authority and consent under Order 1 Rule 12 of the Civil Procedure Rulesattached to the plaint and filed on 4. 2.2010 is allegedly executed by the 6th plaintiff.
7. Based on the admission by the plaintiffs that the 6th plaintiff passed on in 2000, long before the suit was filed and the cause of action was based on fraud allegedly committed in 2009, the said cause of action expired after 12 years and cannot be said to subsist.
8. Secondly, the plaintiff was dead before the suit was filed and served upon the defendants. The court was made to accept false documents by the plaintiff. How the anomaly occurred and was not detected by the rest of the plaintiffs remains a mystery and no explanations at all has been made by the applicant herein.
9. This court is being asked to cure an already defective suit. Several other plaintiffs have also died in the course of this suit and amendments allowed yet it is not clear why the 6th plaintiff remained in the pleadings when it was a fundamental error to have included him in the suit in the first instance.
10. In the premises, I find the application lacking merits. The same is dismissed with costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS
THIS 30TH DAY OF MARCH, 2022
IN PRESENCE OF:
WAMBUA FOR PLAINTIFFS 1ST DEFENDANT
KIETI FOR 2ND AND 3RD RESPONDENT
HON. C.K. NZILI
ELC JUDGE