Robert Mukarani Simiti, Joseph Wandaka & Fred Wangila v Peter Badhia, Peter Wekesa, Anne Wekesa & Timothy Pierce [2018] KEELC 1446 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 105 OF 2010

ROBERT MUKARANI SIMITI.................................1ST PLAINTIFF

JOSEPH WANDAKA.................................................2ND PLAINTIFF

FRED WANGILA.......................................................3RD PLAINTIFF

VERSUS

PETER BADHIA......................................................1ST DEFENDANT

PETER WEKESA...................................................2ND DEFENDANT

ANNE WEKESA.....................................................3RD DEFENDANT

DR. TIMOTHY PIERCE.......................................4TH DEFENDANT

R U L I N G

1. The application dated 29/1/2018 and filed in court on 8/3/2018 has been brought by the plaintiff.  It seeks the following orders:-

a. That the honourable court be pleased to make an order to revive this suit.

b. That the honourable court be pleased to substitute the plaintiff who is deceased with one Anthony Bulitia Simiyu, Amos Wanjala Simiyu and Sarah Nekesa Simiyu

c. That upon getting prayer No.1 and 2 above the applicants be granted leave further to amend the plaint to reflect the names of the substituted applicants.

2. The applicant has brought the application under Sections 1A, 3, 3A and 63(c) of theCivil Procedure ActandOrder 24 Rules 1 and Order 31 Rulesof theCivil Procedure Rules. The application is supported by the sworn affidavit of the plaintiff.

3. The grounds upon which the application is made are contained at the foot of the application. They are that the plaintiff Barnabas Simiyu Munialo died on 16/8/2015; that Letters of Administration of the Estate of Barnabas Simiyu Munialo were issued to Antony Bulitia Simiyu, Amos Wanjala Simiyu andSarah Nekesa Simiyu on 15/6/2016 and that the claim in the suit is for a declaratory order that the transactions between the plaintiff and the defendants is null and void for want of Land Control Board Consent, eviction, injunction and the cause of actions survived the plaintiff.

4. The sworn affidavit of the Risper Arunga Advocate for the applicant opposed the application dated 29/1/2018 claiming that the applicants have not demonstrated sufficient cause for reviving the suit as they were issued with Letters of Administration within ten months from the date of demise of the deceased but chose to bring the instant application more than two and half years after the demise of the deceased; that the application is incompetent as its supporting affidavit was not sworn by the applicants but by their advocate and that the 1st defendant is deceased and has not been substituted.

5. I have considered the application and the grounds of opposition. The applicants may have delayed but they have finally brought the application and it is before the court. It is normally the duty of a court of law to hear matters and make just determinations based on evidence and on the merits and not on technicalities. Besides the matters that surround a deceased person’s affairs may be complex and beyond comprehension at times as new players enter the arena. It can be seen that there are already more than one person named as the administrator of the estate. Judging by the normal environment families find themselves in when succession matters arise, there may be other persons entitled to beneficial interest in the estate out there whose roles in this matter can not be immediately seen.

6. In view of what has been said above I find no good ground to deny the application dated 29/1/2018. The same is allowed as prayed. The amended plaint reflecting the substitution shall be filed and served within 14 days of this order. The costs thereof shall be in the cause.

Dated, signed and delivered at Kitale on this 24th day of September, 2018.

MWANGI NJOROGE

JUDGE

24/9/2018

Coram: Before Hon. Mwangi Njoroge, Judge

Court Assistant - Picoty

Mr. Bisonga for respondent

Ms. Munialo holding brief for Arunga for the applicant

COURT

Ruling read in open court.

MWANGI NJOROGE

JUDGE

24/9/2018