[2021] KEELC 3147 (KLR)
The court found that the plaintiff had erroneously sued the 3rd defendant as the personal representative of the estate of Thuiruaine Mwitari alias Thirwaine Mwitari. The error was admitted by the plaintiff at an early stage, and the application for substitution and withdrawal was unopposed by the 3rd defendant. In...
Source-derived case information.
- Citation
- [2021] KEELC 3147 (KLR)
- Parties
- Plaintiff: Times U Sacco Society Limited; Defendant: Nuru Kithinji Igweta; Defendant: Ludia Kainda; Defendant: M’Nabea M’Imanyara (sued as the personal representative of the estate of Thuiruaine Mwitari alias Thirwaine Mwitari)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E003 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Substitution and Withdrawal of Party
- Outcome
- Application allowed; 3rd defendant substituted and withdrawn from suit; plaintiff to pay half costs to 3rd defendant.
- Legal Topics
- Party Substitution, Withdrawal of Suit, Costs Award, Personal Representative Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Times U Sacco Society Limited
Plaintiff
Nuru Kithinji Igweta
Defendant
Ludia Kainda
Defendant
M’Nabea M’Imanyara (sued as the personal representative of the estate of Thuiruaine Mwitari alias Thirwaine Mwitari)
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Substitution and Withdrawal of Party
Legal Issues
- 1 Whether the 3rd defendant should be substituted with the correct personal representatives of the estate of Thuiruaine Mwitari alias Thirwaine Mwitari.
- 2 Whether the suit against the 3rd defendant should be withdrawn.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court found that the plaintiff had erroneously sued the 3rd defendant as the personal representative of the estate of Thuiruaine Mwitari alias Thirwaine Mwitari. The error was admitted by the plaintiff at an early stage, and the application for substitution and withdrawal was unopposed by the 3rd defendant. In the interest of justice and to avoid unnecessary litigation, the court allowed the substitution of the 3rd defendant with the correct personal representatives and ordered the withdrawal of the suit against the 3rd defendant. However, since the mistake originated from the plaintiff, the court exercised its discretion to award half costs to the 3rd defendant, balancing the early...
Court Disposition
Application allowed; 3rd defendant substituted and withdrawn from suit; plaintiff to pay half costs to 3rd defendant.
Orders
- The 3rd defendant M’Nabea M’Imanyara is substituted with Pauline Nkuruguchu M’Twamwari and Ludia Kainda as personal representatives of the estate of Thuiruaine Mwitari alias Thirwaine Mwitari.
- The suit against the 3rd defendant represented by Charity J. M’Nabea is withdrawn forthwith.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC NO. E003 OF 2021
TIMES U SACCO SOCIETY LIMITED..........................................PLAINTIFF
VERSUS
NURU KITHINJI IGWETA .................................................1ST DEFENDANT
LUDIA KAINDA....................................................................2ND DEFENDANT
M’NABEA M’IMANYARA (sued as the personal
representative of the estate of THUIRUAINE MWITARI
alias THIRWAINE MWITARI.............................................3RD DEFENDANT
RULING
1. Before me is a Notice Motion dated 23/02/2021 brought pursuant to Order 51 Rule 1, Order 1 Rule 9 and 10 of the Civil Procedure Rules 2010, Article 159 of the Constitution of Kenya, and Section 13, 18 and 19 of the Environmental and Land Court. The applicant is seeking orders to substitute the 3rd defendant herein M’NABEA M’IMANYARA erroneously sued as the personal representative of THUIRUAINE MWITARI alias THIRWAINE MWITARI with PAULINE NKURUGUCHU M’TWAMWARI and LUDIA KAINDA. The applicant also prays that forthwith, the 3rd defendant represented by his personal representative CHARITY J. M’NABEA be deemed duly withdrawn from the suit.
2. The Application is based on the grounds on the face of it and on the Supporting Affidavit of Joel Mutuma, Advocate for the applicants. He avers that it is prudent that the application be allowed and the suit be withdrawn against the 3rd defendant with no costs.
3. The 3rd defendant filed a replying affidavit dated 1/03/2021, averring that she was not opposing the application, but she prays for costs.
4. I have carefully perused the application and in the interest of justice the application dated 23/02/2021 ought to be be allowed. On costs, I have taken into consideration that it was the plaintiff’s mistake to sue the 3rd defendant as admitted in paragraph 2 of the supporting affidavit, but this admission has been done at an early stage. I therefore condemn the plaintiff to pay half costs to the 3rd defendant.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 26TH DAY OF MAY, 2021 IN PRESENCE OF:
C/A: Kananu
Mutuma Joel for plaintiff
Muriira for 3rd defendant
HON. LUCY. N. MBUGUA
ELC JUDGE