Paul Ndubi Nkoroi v Justus Kirigia M’ikiara [2018] KEELC 473 (KLR)

REPUBLIC OF KENYA

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT CHUKA

CHUKA ELC CASE NO 08 OF 2017

FORMERLY MERU ELC CASE NO. 18 OF 2015

IN THE MATTER OF LIMITATION OF ACTIONS ACT CAP 22, SECTION 7, 37 & 38

AND

IN THE MATTER OF LAND REGISTRATION ACT NO. 3/2012, SECTION 28

AND

IN THE MATTER OF AN APPLICATION BY PAUL NDUBI NKOROI UNDER THE LIMITATION OF ACTION ACT THAT BE REGISTERED WITH 0. 23 ACRES OUT OF LR: KIERA EAST MAGUTUNI/166

AND FOR A DECLARATION THAT THE APPLICANT BE REGISTERED WITH 0. 23 ACRES OUT OF LR:KIERA EAST MAGUSTUNI/166

BETWEEN

PAUL NDUBI NKOROI.......................................................................APPLICANT

VERSUS

JUSTUS KIRIGIA M’IKIARA........................................................RESPONDENT

RULING

1.  This application is dated 8th November, 2018 and seeks orders that:

1.  That the court do direct and order the land registrar to dispense with the production of the original title deed of LR; Kiera/E. Magutuni/3039 when implementing the court orders.

2.  Felix Mputhia Ndubi the applicant herein be substituted for Paul Ndubi Nkoroi (deceased) as the applicant in the instant originating summons.

3.  Costs of this application be provided for.

2.  The application has the following grounds:

a)  That the applicant is a son of Paul Ndubi Nkoroi (deceased).

b)  That Paul Ndubi Nkoroi died on 13th January, 2018.

c)  That the applicant is the holder of letters of administration ad litem in respect of the estate of the late Paul Ndubi.

d)  That the initial applicant in the instant O.S died before execution proceedings had commenced thereby stalling the suit to its logical conclusion.

e)  That there is need of the applicant being enjoined in this suit as a substitute for Paul Ndubi Nkoroi if this matter can proceed to execution.

f)  That the estate of Paul Ndubi cannot enjoy fruits of his successful litigation unless and until he is substituted with another person.

g)  That this application will not change the ratio decidedi of the suit as per the judgment of this court delivered on 31st July, 2017 and reviewed on 20th September, 2017.

h)  That no party stand (sic) to suffer any prejudice in the event that the orders sought are granted.

3.  The application is supported by the affidavit of Felix Mputhia Ndubi which states:

I, FELIX MPUTHIA NDUBI of P. O. Box 46 Magutuni in the Republic of Kenya make oath and state as follows;

1.  That I am the applicant herein well versed with the particulars of this suit and hence competent to make this oath.

2.  That I am a son of Paul Ndubi Nkoroi (deceased) the original applicant in the instant O.S.

3.  That Paul Ndubi Nkoroi died on 13th January, 2018 as evidence (sic) in the certificate of death (annexed and marked F.M. N. 1 is the certificate of death).

4.  That I am the holder of letters of administration Ad Litem in respect of the estate of the late Paul Ndubi (annexed and marked F. M. N. 2 is the letters of administration Ad Litem).

5.  That the initial applicant in the instant O.S. died before execution proceedings had commenced thereby stalling the suit to its logical conclusion.

6.  That there is need of my being enjoined in this suit as a substitute for Paul Ndubi Nkoroi (deceased) if this matter will proceed to execution.

7.  That the estate of Paul Ndubi Nkoroi cannot enjoy fruits of his successful litigation unless and until he is substituted with another person.

8.  That this application will not change the ratio decidedi of the suit as per the judgment of this court delivered on 31st July, 2017 and reviewed on 20th September, 2017.

9.  That it is unlikely that the respondent will ever surrender the original title deed of LR; Kiera/E.Magutuni/3039 hence the need of this court to order the land registrar do dispense with the production of the original title deed of LR; Kiera/E. Magutuni/3039 when registering what the initial applicant Paul Ndubi is entitled to.

10. That no party stands to suffer any prejudice in the event that the orders sought are granted.

11. That all which is deponed herein is true to the best of my knowledge, belief and information.

4.  The application was heard on 11th November, 2018 when Mr. I. C. Mugo, the applicant’s advocate, asked the court to allow prayer 1 only.

5.  Regarding prayer No. 2, the court finds itself unable to grant it as it is functus official. I find that I cannot give an order to enjoin an applicant in an already concluded case.

6.  I issue the following orders:

a)  Prayer 1 in the application is allowed.

b)  No costs are awarded.

7.  It is so ordered.

Delivered in open court at Chuka this 11th day of December, 2018 in the presence of:

CA: Ndegwa

I.C.Mugo present for the Applicant

Justus Kirigia – Respondent - Absent

P.M. NJOROGE

JUDGE