[2018] KEELC 4578 (KLR)
The court found that the death of the 2nd Plaintiff did not extinguish the cause of action, which survives to the 1st Plaintiff. Under Order 24 Rule 2 of the Civil Procedure Rules, the court is empowered to strike out the deceased plaintiff and allow the suit to proceed in the name of the surviving plaintiff....
Source-derived case information.
- Citation
- [2018] KEELC 4578 (KLR)
- Parties
- Plaintiff: Yasmin Easley; Plaintiff: Eugene Leslie Anthony Ossewe; Defendant: Hassan Hamed; Defendant: Dubai Bank (K) Limited (In Liquidation)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 368 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Substitution and Amendment
- Outcome
- application allowed
- Judges
- AK Bor
- Legal Topics
- Party Substitution, Amendment of Pleadings, Mortgage Disputes, Death of Party, Statutory Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Yasmin Easley
Plaintiff
Eugene Leslie Anthony Ossewe
Plaintiff
Hassan Hamed
Defendant
Dubai Bank (K) Limited (In Liquidation)
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Substitution and Amendment
Legal Issues
- 1 Whether the 2nd Plaintiff should be struck off the proceedings following his death.
- 2 Whether the 2nd Defendant, under receivership, should be substituted with Kenya Deposit Insurance Corporation (KDIC).
- 3 Whether leave should be granted to amend the plaint to reflect the changes in parties.
Ratio Decidendi
The court found that the death of the 2nd Plaintiff did not extinguish the cause of action, which survives to the 1st Plaintiff. Under Order 24 Rule 2 of the Civil Procedure Rules, the court is empowered to strike out the deceased plaintiff and allow the suit to proceed in the name of the surviving plaintiff. Regarding the 2nd Defendant, the Kenya Deposit Insurance Act requires leave of court to continue proceedings against an institution under receivership or liquidation. The court was satisfied that the amendments sought were necessary for the proper determination of the issues and that the Plaintiff had complied with the procedural requirements. Accordingly, the court granted the...
Court Disposition
application allowed
Orders
- The name of the 2nd Plaintiff is struck off the proceedings.
- Leave is granted to substitute the 2nd Defendant with Kenya Deposit Insurance Corporation (KDIC).
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CASE NO. 368 of 2009
YASMIN EASLEY……………………….…..…......………1ST PLAINTIFF
EUGENE LESLIE ANTHONY OSSEWE ….…….........…2ND PLAINTIFF
VERSUS
HASSAN HAMED………....…………….………..........1ST DEFENDANT
DUBAI BANK (K) LIMITED (IN LIQUIDATION)……..2ND DEFENDANT
RULING
Through the application dated 19/7/2016, the Plaintiffs seek leave to substitute the 2nd Defendant, which is under receivership, with Kenya Deposit Insurance Corporation (KDIC) which was appointed as its receiver manager or liquidator. In addition, the 1st Plaintiff seeks to have the 2nd Plaintiff struck off these proceedings. The 1st Plaintiff seeks to amend his plaint to reflect this new position.
The application is premised on the fact that the 2nd plaintiff died and the 2nd Defendant was placed under statutory management by the Central Bank of Kenya. The Plaintiff argues that the proposed amendments to the suit are necessary for the proper determination of the issues in dispute. The application is supported by the Affidavit of the Plaintiffs’ counsel to which a copy of the death certificate confirming that the 2nd Plaintiff died on 16/7/2015 is attached as well as a draft Further Amended Plaint.
The Plaintiffs filed this suit on 28/7/2009 challenging the transfer and mortgage of L.R. Number 330/560 (original number 330/27/1) situated in Lavington, Nairobi, to the 1st and 2nd Defendants respectively.
Rule 2 of Order 24 of the Civil Procedure Rules provides that where there one of the Plaintiffs dies and the cause of action continues to the surviving plaintiff, the court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff.
The court allows the 1st Plaintiff’s prayer to have the name of the 2nd Plaintiff struck off these proceedings so that he can continue with the matter.
The Kenya Deposit Insurance Act was enacted in 2012 to provide for the establishment of a deposit insurance scheme and the receivership and liquidation of deposit taking institutions. Section 56 (2) of this Act stipulates that no injunction may be brought or any other action or civil proceeding may be commenced or continued against the institution or in respect of its assets without the sanction of the Court. The Plaintiff therefore requires the court’s leave to continue with these proceedings against the 2nd Defendant.
The court allows the application and grants the orders sought in the application dated 19/7/2016. The Plaintiff is directed to file and serve his Further Amended Plaint within 14 days of today failing which the suit shall stand dismissed. Costs shall be in the cause.
Dated and delivered at Nairobi this 5th day of February 2018.
K. BOR
JUDGE
In the presence of: -
Ms. Nyaanga holding brief for Mrs. Maangi for the Plaintiff
No appearance for the Defendants
Mr. V. Owuor- Court Assistant