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ELCPartially AllowedOriginating Summons filed 23 September 2011 (Nakuru ELC)· [2018] KEELC 4383 (KLR)
In re Estate of Lucy Chepkemoi Mosonik (Deceased) [2018] KEELC 4383 (KLR)
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·~1 min to read original · ~4 min briefThe bottom line
#A Kenyan land court allowed two women to step in as parties for deceased defendants, ruling that hearing all sides matters more than procedural technicalities.
What this practically means
#Executive summary
#This ruling by the Environment and Land Court at Nakuru (Munyao Sila, J) determined an application dated 7 March 2017 filed by Zainab Abdi and Zainab Umar Abdi under Order 24 of the Civil Procedure Rules, seeking substitution for the two defendants, Khadija Haji Ahmed and Fatuma Hersi Ali, both of whom had died (on 9 January 2009 and 16 August 2017 respectively). The underlying suit is an Originating Summons filed on 23 September 2011 by the estate of Antony Kiprono Mosonik, in which the plaintiff sought a declaration of title to land parcel Dundori/Mugwathi Block 2/311 by adverse possession. Fatuma Hersi Ali had opposed the suit through a replying affidavit filed on 14 November 2011. The court observed that the 1st defendant had actually died before the suit was filed, which created a technicality in the proceedings against her estate. Nonetheless, the judge held that the interests of justice required that all parties have an opportunity to present their respective cases, and allowed the application, permitting both applicants to come on record on behalf of the deceased defendants. The court made no orders as to costs and directed that it was so ordered on 14 February 2018 at Nakuru.
Key legal issues
#01
Substitution of deceased defendants under Order 24 of the Civil Procedure Rules
Holding
The application for substitution was allowed despite a technicality arising from the death of the 1st defendant before suit was filed
Reasoning
The court noted the suit was an adverse possession claim against the deceased defendants. The 1st defendant had died before suit was filed, creating a technicality, but the court prioritised the interests of justice, holding that substitution would allow all parties an opportunity to present their respective cases.
p. 2
Legal principles established
#- Technical defects in proceedings against a deceased party should yield to the interests of justice so that all parties may present their cases, permitting substitution under Order 24
Court orders
#- 1.The application for substitution dated 7 March 2017 is allowed
- 2.The two applicants, Zainab Abdi and Zainab Umar Abdi, are permitted to come on record on behalf of the deceased parties
- 3.No orders as to costs
- Jurisdiction invoked
- Order 24 of the Civil Procedure Rules (substitution of deceased parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Lucy Chepkemoi Mosonik (Deceased) [2018] KEELC 4383 (KLR)", Case Analysis (2018). Originating Summons filed 23 September 2011 (Nakuru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4383/eng@2018-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.