Republic v Minister of Lands, Housing, Physical Planning and Settlement & 4 others Ex-Parte Gilbert Muchiri Ngaine [2018] KEELC 3235 (KLR)

High Court of Kenya (Chuka)

23 May 2018

PNP. M. Njoroge

358 words in judgment

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The bottom line

Kenya's High Court allowed a deceased party's son, holding a grant ad litem, to be substituted into an ongoing case so it could continue.

What this practically means

Executive summary

This is a short first-instance ruling by P. M. Njoroge, J, delivered in open court at Chuka on 23rd May 2018. The application, dated 23rd May 2018, sought two orders: that the court substitute the deceased Mutua Mugambi Arewa with his son Wilfred Kithinji Magambo, and that costs be in the cause. It was supported by the affidavit of Wilfred Kithinji Magambo, who deponed that the 1st Interested Party was his father and died on 5th May 2018 (evidenced by a death certificate), that the cause of action survived the deceased, and that he had obtained a grant ad litem permitting him to be joined as the 1st Interested Party. When the application was heard inter partes on 23rd May 2018, Mr Mutani, counsel for the 1st Interested Party's side, moved the court to allow it, and none of the other parties present opposed the prayer. The court allowed the application, ordered that costs be in the cause, granted the 1st Interested Party seven days to file and exchange necessary responses, and directed the parties to appear for directions on 14th June 2018. No authorities or statutory provisions are cited, and no substantive claims were determined at this stage; the ruling is purely procedural, concerning joinder and substitution of a deceased party in a matter in which one party is styled an exparte applicant.

Key legal issues

Substitution of a deceased interested party

Holding

The court allowed substitution of the deceased 1st Interested Party by his son, who held a grant ad litem, the application being unopposed.

Reasoning

The applicant deponed that the 1st Interested Party died on 5.5.2018, exhibited a death certificate, asserted that the cause of action survived the deceased, and exhibited a grant ad litem permitting substitution. The prayer was unopposed by the other parties present when the application was heard inter partes, and the court accordingly allowed it with costs in the cause.

p. 2

Legal principles established

Where a cause of action survives a deceased party, substitution of the deceased with a personal representative holding a grant ad litem is permitted and may be allowed unopposed.

Court orders

1.The application dated 23rd May 2018 is allowed
2.Costs to be in the cause
3.The 1st Interested Party is granted 7 days to file and exchange necessary responses
4.Parties to come to court for directions on 14.6.2018

Jurisdiction invoked: Inherent procedural jurisdiction to substitute a deceased party (grant ad litem obtained); no specific constitutional/statutory provision cited

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Republic v Minister of Lands, Housing, Physical Planning and Settlement & 4 others Ex-Parte Gilbert Muchiri Ngaine [2018] KEELC 3235 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3235/eng@2018-05-23

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