[2021] KEELC 4455 (KLR)
The court found that the cause of action against the 1st defendant survives her death, as the plaintiffs seek cancellation of title allegedly obtained by fraud. The applicant, being the first born son of the deceased and holding a grant ad litem limited for substitution purposes, is a proper person to be substituted...
Source-derived case information.
- Citation
- [2021] KEELC 4455 (KLR)
- Parties
- Plaintiff: Zainulabidin Yusufali Dar (Suing as personal representative of the estate of Yusufali Adamali Dar) & 2 Others; Defendant: Mwajajuma Ali Buwa (deceased) & 3 Others; Applicant: Yusufu Mohamed Sikondo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 174 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution of Deceased Defendant
- Outcome
- application allowed
- Legal Topics
- Substitution of Parties, Grant Ad Litem, Survival of Actions, Fraudulent Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zainulabidin Yusufali Dar (Suing as personal representative of the estate of Yusufali Adamali Dar) & 2 Others
Plaintiff
Mwajajuma Ali Buwa (deceased) & 3 Others
Defendant
Yusufu Mohamed Sikondo
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution of Deceased Defendant
Legal Issues
- 1 Whether the applicant should be substituted as the 1st defendant following the death of the original 1st defendant.
- 2 Whether the suit survives against the estate of the deceased 1st defendant.
Ratio Decidendi
The court found that the cause of action against the 1st defendant survives her death, as the plaintiffs seek cancellation of title allegedly obtained by fraud. The applicant, being the first born son of the deceased and holding a grant ad litem limited for substitution purposes, is a proper person to be substituted in place of the deceased 1st defendant. There was no opposition to the application, and the court saw no reason to deny the order. The application for substitution was therefore allowed, and the applicant was ordered to be substituted as the 1st defendant. The plaint is to be amended within 14 days to reflect this substitution. No order as to costs was made.
Court Disposition
application allowed
Orders
- The deceased 1st defendant, Mwanajuma Ali Buwa, is substituted by Yusufu Mohamed Sikondo as the 1st defendant.
- The plaint shall be amended within 14 days to reflect the substitution.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT MOMBASA
ELC NO. 174 OF 2014
ZAINULABIDIN YUSUFALI DAR (Suing as personal representative of
the estateof YUSUFALI ADAMALI DAR) & 2 OTHERS.......PLAINTIFFS
VERSUS
MWANAJUMA ALI BUWA & 3 OTHERS....................................DEFENDANTS
AND
YUSUFU MOHAMED SIKONDO......................................................APPLICANT
RULING
(Application for substitution of the deceased 1st defendant; applicant holding a grant ad litem; application allowed)
1. The application before me is that dated 2 June 2020 filed by Yusufu Mohamed Sikondo who seeks to substitute the deceased 1st defendant one Mwanajuma Ali Buwa. In the supporting affidavit, the applicant has averred that he is the first born son of the deceased 1st defendant and is familiar with this case. He has further deposed that the 1st defendant died on 2 October 2019 and he has annexed a copy of the certificate of death. He has also annexed a grant ad litem, issued to him by the Principal Magistrate’s Court at Kwale, limited for purposes of substituting the deceased 1st defendant in this suit.
2. I can see that the plaintiffs in this case assert that they are the genuine owners of the land parcel Kwale/Msambweni “A”/1666. They contend that the 1st and 2nd defendants became registered as owners of the disputed land by way of fraud, and in the suit, they wish to have orders for the cancellation of the title of the 1st and 2nd defendants. Clearly therefore, the suit against the 1st defendant survives the death of the 1st defendant and can therefore be continued against her estate.
3. I have no reason to deny the order of substitution and I allow the application to that extent. I therefore make the order that the deceased 1st defendant be substituted by the applicant herein. I further direct that the plaint be amended within 14 days to reflect the substitution. I make no orders as to costs.
4. Orders accordingly.
DATED AND DELIVERED THIS 21 DAY OF JANUARY, 2021
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT OF KENYA
AT MOMBASA