Alexander M. Odongo v Clement Mukoya & Imelda Were [2015] KEHC 6553 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 191 OF 2014.

ALEXANDER M. ODONGO…………..……………………. PLAINTIFF

=VERSUS=

CLEMENT MUKOYA

IMELDA WERE………………………………………...DEFENDANTS.

R U L I N G.

IMELDA WERE, who is the 2nd Defendant, through M/S. J. V. JUMA & CO., Advocatesby the notice of motion dated 17th November, 2014 moved the court under Order 2 Rule 15 (a) of the  Civil Procedure Rules  to strike  out the Plaintiff’s suit for failure  to disclose a cause of action. The application is based on the following three grounds.;-

‘’  (i)  The Plaintiff has no capacity to sue in the circumstances.

(ii)  The 1st Defendant is dead.

(iii)  The whole suit is totally defective, and incompetent.’’

The application was served on Alexander Mudibo Odongo, the Plaintiff herein, through the postal address he gave in paragraph 1 of the plaint dated 10th October, 2014 by registered post service.  The Plaintiff did not attend court during  the hearing. I have considered the grounds on the application and the submission by 2nd Defendant’s counsel and find as follows:-

1. That applications under Order 2 rule 15 (1)  (a)  of the Civil Procedure  Rules do not require  evidence  to accompany  them. As such no supporting affidavit was filed.

2. That the pleadings in the plaint field by the Plaintiff, and dated 10th  October, 2014 suggests that the suit  properties were registered in the names of  one Odongo Ong’ombe who died in October, 1970.

3. That the suit parcels were registered on 27th June, 1973 which was over two years after the death of the said Odongo  Ong’ombe.

4. That though the Plaintiff alleged that he was a son of the said Odongo Ongombe, he has not averred in his pleadings that he had been appointed the administrator of the estate of the said Odongo Ong’ombe.

5. That  the Plaintiff has not rebutted the 2nd Defendant  averment that the 1st Defendant is deceased.  It is trite law that no suit can be commenced and. or sustained against a dead person but only against such deceased person’s estate or personal representative.

6. That for reasons  that the Plaintiff  do not  have capacity  to sue  over the suit properties and that the 1st Defendant is reportedly deceased and no action has been taken to enjoin his personal  representative in his place, the  suit is struck out with costs to the  2nd Defendant.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON …24TH .....DAY OF FEBRUARY, 2015.

IN THE PRESENCE OF……..N/A ……………PLAINTIFF

…….N/A…………….1ST DEFENDANT

……..N/A…………..2ND DEFENDANT.

MR.J.V. JUMA    ADVOCATE FOR 2ND DEFENDANT.

JUDGE.