Muse v Wayongo & 2 others [2024] KEELC 13900 (KLR)

Muse v Wayongo & 2 others (Enviromental and Land Originating Summons 6 of 2021) [2024] KEELC 13900 (KLR) (11 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13900 (KLR)

Republic of Kenya

In the Environment and Land Court at Bungoma

Enviromental and Land Originating Summons 6 of 2021

EC Cherono, J

December 11, 2024

Between

Thomas Chenane Muse

Applicant

and

Cleophas Wayongo

1st Respondent

Ndinyo Muse

2nd Respondent

Simiyu Muse

3rd Respondent

Ruling

1. Vide a Notice of Motion application dated 19th June 2024, the Applicant seeks the following orders;a.This Honourable court be pleased to substitute the deceased 2nd Defendant herein Ndinyo Muse with Alex Barasa Ndinyo as his legal representative.b.This Honourable court be pleased to revive this suit.c.That the costs be in the cause.

2. The application is based on grounds apparent on the face of the application, the Applicant’s supporting affidavit and further affidavit. The said application is opposed by the Respondent who filed grounds of opposition dated 14th August, 2024 through the firm of Omundi Bwonchiri Advocates.

3. In his supporting affidavit, the Applicant deposed that he is the son of Ndinyo Musee, the 2nd defendant herein who died on 03/04/2023 and that he has obtained a limited letters of administration (ad litem) as the legal representative of his estate and now wishes to be substituted in his place. He stated that this suit abated on 3rd April 2024 and the abatement was occasioned by the delay in getting the death certificate and also due to his siblings not agreeing in good time to substitute the deceased.

4. He stated that the delay is not inordinate, having explained the reasons for delay and that it would be in the interest of justice to accord the family of the 2nd defendant a chance to defend this suit.

5. In opposition thereto, the Respondent averred that the application is frivolous, scandalous and an abuse of the court process and that the suit as against the 2nd Defendant abated on 3/4/2024 and that there is no prayer for revival of the suit.

6. When the said application came up for hearing, the parties agreed to have the same canvassed by way of written submissions.

7. I have considered the application, the supporting affidavit, grounds of opposition and the rival submissions by the advocates. The Applicant who is the son to Ndinyo Muse(deceased) seeks to be substituted as the legal representative of his estate. He has annexed a copy of a death certificate and a limited grant of letters of administration ad litem for his estate of his vide Bungoma Succession Miscellaneous Cause No. E073 of 2024. He also annexed a copy of a death certificate indicating that the deceased passed away on 03/04/2023.

8. Order 24 Rule 4 of the Civil Procedure Rules provides as follows;1. Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the.’’

9. From the pleadings in this suit, the plaintiff’s claim is for adverse possession which is a dispute over ownership of title. That cause of action in my view survives or continues after the demise of the original defendant. The other issues is whether sufficient reasons have been given for the delay in filing the current application and whether this suit as against the 2nd defendant/Respondent should be revived.

10. At paragraph 2 of his further affidavit, the Applicant deposed that the delay in filing the application for substitution was occasioned by his siblings not agreeing on substitution of the deceased and failing to obtain the death certificate in good time. These averments given on oath have not been controverted.

11. I am satisfied that the application for substitution is not inordinate as the reasons for the delay has been explained.

12. For the above stated reasons, I find the Notice of Motion application dated 19th June, 2024 merited and the same is allowed as follows;i.That this suit as against Ndinyo Muse (deceased), the 2nd defendant herein is hereby revived.ii.That the Applicant, Thomas Muse is allowed to substitute Ndinyo Muse (deceased) as the 2nd Defendant herein.iii.That the costs of the application to be costs in the cause.

DATED, DELIVERED AND SIGNED AT BUNGOMA THIS 11TH DAY OF DECEMBER, 2024…………………………HON. E.C CHERONOELC JUDGEIn the presence of;1. Mr Anwar for the Applicant.2. M/S Wanyama for the Respondent.3. Bett C/A.