Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of Motion dated 8th March, 2018 (suit commenced by plaint dated 15th March, 2011)· [2018] KEELC 802 (KLR)

William Otiende Didi (Substituted Leonida Donde Ambuno) v Joash Agengo Migudi & 2 others [2018] KEELC 802 (KLR)

Environment and Land Court
21 November 2018
SKS.M. Kibunja
1,318 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court set aside a consent order that substituted a plaintiff without proof of service or authority, but gave the parties three months to properly substitute the deceased's estate.

What this practically means

#

Executive summary

#
The plaintiff, William Otiende Didi, moved the court by notice of motion dated 8th March 2018 seeking review and setting aside of a consent order dated 23rd April 2013 (filed 29th April 2013) under which he had been substituted for the original plaintiff, Leonida Donde Ambuno, who died during the pendency of a land suit over Kisumu/Nyahera/227. The applicant argued that the consent rested on a power of attorney which, in law, does not survive its donor, and that both parties were mistaken as to its effect. The defendants opposed, contending the application did not meet Order 45 requirements, was filed after unreasonable delay of about four years, and that an erroneous conclusion of law is not a ground for review, citing Pancras T. Swai v Kenya Breweries Limited. The court framed three issues: whether substitution was based on a power of attorney, whether the consent was tainted by illegality or misrepresentation, and costs. It found the power of attorney had never been alluded to in the substitution application, affidavit or consent letter, so its legality could not ground review. However, the substituted plaintiff was never served with the application, nothing on record showed he instructed the firm entering the consent, and there was no evidence he was the estate's legal representative - defects aggravated by the counterclaim's aim of divesting the deceased's registered estate of the land. The court allowed the application in terms of prayer 2: the consent order was set aside and subsequent pleadings expunged, but abatement was declined; the parties were given three months to substitute the deceased, with costs in the cause.

Key legal issues

#
01

Whether substitution was effected on the basis of a power of attorney

Holding

No. The power of attorney was never alluded to in the notice of motion, its supporting affidavit, or the letter of consent; its legality therefore cannot be the basis for reviewing the consent order.

Reasoning

The court traced the record and found that the claim that substitution rested on a power of attorney from the deceased donor was unsupported by the application of 18th April 2013, the supporting affidavit and the consent letter of 23rd April 2013. Having never featured on the record, the legality of the power of attorney could not ground review of the consent.

p. 2
02

Whether the consent order substituting William Otiende Didi is sustainable

Holding

No. In the absence of service on him, evidence of his authority to counsel to consent, or evidence that he is the legal representative of the estate, the consent order stands on shaky grounds and is set aside.

Reasoning

The court weighed the procedural irregularities: the substituted plaintiff was never served with the substitution motion; nothing on record showed he instructed the firm entering the consent; and no grant or evidence showed he was a legal representative of the estate. Because the counterclaim sought to divest the registered estate of the deceased of the suit land, these defects rendered the consent legally questionable.

03

Whether the suit should be declared abated

Holding

No. Abatement was premature; both sides were given three months to take substitution steps, failing which appropriate orders may follow.

Reasoning

Having set aside the consent and expunged subsequent pleadings, the court considered it fair to allow both sides reasonable opportunity to substitute the deceased original plaintiff before any declaration of abatement, since until then William Otiende Didi had been on record as substituted plaintiff.

p. 2

Legal principles established

#
  • A consent order compromising substitution of a plaintiff cannot stand where the substituted party was not served with the application and there is no record of his authority to counsel to consent on his behalf

Court orders

#
  1. 1.The consent order dated 23rd April, 2013 and filed on 29th April, 2013 is set aside
  2. 2.The subsequent process and pleadings filed with William Otiende Didi as the plaintiff are expunged from the court record
  3. 3.The prayer that the suit be marked as abated is declined; parties are given three (3) months to take steps towards substituting the deceased original plaintiff, failing which her suit may be declared abated
  4. 4.Costs in the cause
Jurisdiction invoked
Original civil suit jurisdiction; review under Order 45 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "William Otiende Didi (Substituted Leonida Donde Ambuno) v Joash Agengo Migudi & 2 others [2018] KEELC 802 (KLR)", Case Analysis (2018). Notice of Motion dated 8th March, 2018 (suit commenced by plaint dated 15th March, 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/802/eng@2018-11-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.