Zainulabidin Yusufali Dar (Suing as personal representative of the estate of Yusufali Adamali Dar) & 2 others v Mwanajuma Ali Buwa & 3 Others: Ex-parte Applicant; Yusufu Mohamed Sikondo [2021] KEELC 4455 (KLR) | Substitution Of Parties | Esheria

Zainulabidin Yusufali Dar (Suing as personal representative of the estate of Yusufali Adamali Dar) & 2 others v Mwanajuma Ali Buwa & 3 Others: Ex-parte Applicant; Yusufu Mohamed Sikondo [2021] KEELC 4455 (KLR)

Full Case Text

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