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ELCAllowedNotice of Motion dated 31st March, 2011 (in Originating Summons filed 20th July, 1995)· [2018] KEELC 4770 (KLR)

Paul Kinyanjui Waruingi & 4 others v Public Trustee [2018] KEELC 4770 (KLR)

Environment and Land Court
24 January 2018
COChristine Ochieng
1,087 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling on the Applicants' Notice of Motion dated 31st March 2011, brought under Order L Rule 1, Order XLIX Rule 5 and Order XXIII rule 4(1) of the Civil Procedure Rules and section 3A of the Civil Procedure Act. The Applicants, administrators of the estate of Paul Kinyanjui Waruingi, the deceased Plaintiff in an Originating Summons on adverse possession filed on 20th July 1995, sought enlargement of time to substitute the deceased Plaintiff's name with their own. They explained a long history of misfortune: the Plaintiff died on 6th June 2003; Letters of Administration intestate were granted on 12th November 2009; their first advocate J. Njenga Njau died; successor firms (J. Ngaii Gikonyo & Co., O.T. Ngwiri & Co., and Waweru Munyi & Co.) either failed to act or, in the case of Obadiah Thiongo Ngwiri, died on 23rd November 2012 before the application was heard. The Public Trustee was served and did not oppose the application; its counsel expressly stated non-opposition. Justice Christine Ochieng identified a single issue: whether time should be enlarged for substitution. Relying on section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, and noting that the Originating Summons raised weighty adverse possession issues that ought to be heard on the merits, the court held that the mistakes of counsel could not be visited upon the Applicants. The motion was allowed and the Applicants directed to set the suit down for hearing within sixty days.

Key legal issues

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Enlargement of time to substitute a deceased plaintiff

Holding

Time was enlarged to allow substitution of the deceased plaintiff by his legal representatives, given the unopposed application and the multiple misfortunes of successive advocates.

Reasoning

The court invoked section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, both empowering it to enlarge expired periods in the interest of justice. The respondent did not oppose the application. Successive advocates had died or failed to prosecute the application, and the court held that counsel's mistakes should not be visited on the applicants. The suit raised weighty adverse possession issues deserving a hearing on the merits.

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Legal principles established

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  • A mistake or default by counsel ought not to be visited upon a litigant.
  • The court may enlarge time even after the period originally fixed has expired.

Court orders

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  1. 1.Applicants' Notice of Motion dated 31st March, 2011 allowed
  2. 2.Time enlarged for the Applicants to substitute the deceased Plaintiff with the Administrators of his estate
  3. 3.Applicants directed to set the suit down for hearing within sixty (60) days from the date of the order

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder L Rule 1
  • Civil Procedure RulesOrder XLIX Rule 5
  • Civil Procedure RulesOrder XXIII rule 4(1)
  • Civil Procedure RulesOrder 50 Rule 6
Jurisdiction invoked
Section 95 of the Civil Procedure Act; Order 50 Rule 6 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Kinyanjui Waruingi & 4 others v Public Trustee [2018] KEELC 4770 (KLR)", Case Analysis (2018). Notice of Motion dated 31st March, 2011 (in Originating Summons filed 20th July, 1995). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4770/eng@2018-01-24

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