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ELCAllowedNot stated in the extract of the judgment· [2022] KEELC 335 (KLR)

Joseph K. Karanja v James Gacheru Mugo & 9 others [2022] KEELC 335 (KLR)

Environment and Land Court
30 March 2022
MNMwangi Njoroge
1,040 words in judgment
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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 an unopposed application dated 20/8/2021 brought by Peter Karanja Kariuki, administrator of the estate of Joseph Kariuki Karanja, the deceased original plaintiff in a land suit before the Environment and Land Court at Nakuru. The applicant sought leave for new counsel from Kituo Cha Sheria to come on record, setting aside of the dismissal of the plaintiff's case on 6th February 2020, substitution of the deceased plaintiff with his personal representative, and amendment of the plaint. The application was anchored on Order 9 Rule 9, Order 12 Rule 7, Order 24 Rules 1 and 2 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, Section 54 of the Law of Succession Act and Article 159(d) of the Constitution. The applicant deposed that after his father's demise, a grant of letters of administration issued on 19/11/2020; the family's efforts to trace the suit file revealed that the notice to show cause had been served on the wrong firm (Messrs Mugambi Nguthari & Co Advocates) instead of the deceased's advocates on record. The respondents, though served, filed neither a response nor submissions. Justice Mwangi Njoroge held that the failure to serve the deceased's advocates was a serious omission warranting setting aside the dismissal, since no one could make representations against dismissal. The court allowed the application in full: new counsel came on record, the dismissal was set aside, the personal representative was substituted, amendment of the plaint was ordered with service within 14 days, and costs were made costs in the cause. Judgment delivered electronically on 30th March 2022.

Key legal issues

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01

Whether the dismissal of the plaintiff's suit for want of prosecution should be set aside

Holding

The dismissal was set aside because the notice of intention to dismiss was served on the wrong firm of advocates, denying the plaintiff's advocates an opportunity to be heard.

Reasoning

The notice to show cause was served on Messrs Mugambi Nguthari & Co Advocates rather than the deceased's advocates on record. The court found this a serious omission since no one could make representations against dismissal. The application was unopposed and the court was persuaded that the mistakes of the erstwhile advocate should not defeat a substantive land dispute suitable for hearing on its merits.

p. 2
02

Whether substitution of a deceased plaintiff by his personal representative could be allowed

Holding

Substitution was granted under Order 24 and Section 54 of the Law of Succession Act, a grant of letters of administration having been issued within a year of the demise.

Reasoning

The applicant produced a grant of letters of administration issued on 19/11/2020 in CM Succession Cause No E 97 of 2020 in the Estate of Joseph Kariuki Karanja, and deposed that a year had not lapsed since the demise, making substitution and amendment proper. The court substituted the personal representative and ordered amendment of the plaint accordingly.

p. 2

Legal principles established

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  • Failure to serve notice of intention to dismiss a suit on the advocate actually on record is a serious omission that warrants setting aside the dismissal, since no one could appear and make representations against dismissal.

Court orders

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  1. 1.Messrs John Mwariri Advocate, C/O Kituo Cha Sheria is allowed to come on record for the applicant in this matter
  2. 2.The dismissal order issued by the court on 6th February 2020 dismissing the plaintiff's case is set aside
  3. 3.The plaintiff, JOSEPH KARIUKI KARANJA, is substituted with his personal representative PETER KARANJA KARIUKI
  4. 4.The applicant shall cause the amendment of the plaint to reflect the substitution and the amended plaint shall be served on the respondents who have entered appearance or filed defence within 14 days of the order
  5. 5.The costs of the application shall be costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 24 Rules 1 and 2
  • Civil Procedure ActSections 1A, 1B, 3A
  • Law of Succession ActSection 54
  • Constitution of KenyaArticle 159(d)
Jurisdiction invoked
Order 9 Rule 9, Order 12 Rule 7, Order 24 Rules 1 and 2 of the Civil Procedure Rules; Sections 1A, 1B, 3A of the Civil Procedure Act; Section 54 of the Law of Succession Act; Article 159(d) of the Constitution

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, "Joseph K. Karanja v James Gacheru Mugo & 9 others [2022] KEELC 335 (KLR)", Case Analysis (2022). Not stated in the extract of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/335/eng@2022-03-30

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