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ELCAllowedIsiolo ELC No. 004 of 2021· [2024] KEELC 5098 (KLR)

Ibdirahim (Suing as the legal representative of the Estate of Sharrif Ibrahim) v Abdirahim (Environment & Land Case E004 of 2021) [2024] KEELC 5098 (KLR)

Environment and Land Court
1 July 2024
PNP.M Njoroge
597 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Isiolo reinstated a dismissed land case and allowed a son to replace his late father as a party, so the dispute can be decided on its merits.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Isiolo, delivered by Hon. Justice P.M Njoroge on 1 July 2024, determined an unopposed application brought under Order 1 Rule 10(2) and 22, Order 17 Rule 2, Order 12 Rule 7, Order 5 Rule 17 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act. The applicant, Dahir Shariff Abdikadir, sought to set aside and/or vary the dismissal orders for non-attendance delivered on 8 May 2023 in Isiolo ELC No. 004 of 2021, in which his late father, Abdikadir Shariff Abdirahim, had been the defendant in a part-heard matter. The deceased died on 28 November 2022, and the applicant, as eldest son, obtained a limited grant of letters of administration ad litem on 29 December 2023 in Isiolo Kadhis Court Misc. Succession No. E0003 of 2023 for the purpose of prosecuting these proceedings. He sought to be appointed legal representative of the deceased so that substitution proceedings could be effected and the suit prosecuted to conclusion. The respondent filed no response; counsel confirmed the application was unopposed. The court found the application unopposed and held that allowing it would serve the interest of justice, enabling the suit to be heard on its full merits, invoking the maxim ubi jus ibi remedium from Ashby v White (1703) 92 ER 126. The application was allowed in its entirety, costs were provided to be in the cause, and directions were set for 7 October 2024 with service of the orders on the respondent within seven days.

Key legal issues

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Setting aside dismissal for non-attendance and substitution of a deceased party

Holding

The unopposed application was allowed in the interest of justice so the part-heard suit could proceed to full merits hearing with the deceased defendant substituted by his son holding an ad litem grant.

Reasoning

The court noted the application was unopposed. The applicant, eldest son of the deceased defendant, held a limited grant ad litem issued on 29/12/2023 in Isiolo Kadhis Court Misc. Succession No. E0003 of 2023, obtained after the death on 28/11/2022. The court reasoned that allowing the application served the interest of justice and invoked the maxim ubi jus ibi remedium from Ashby v White to justify reinstatement.

p. 2

Legal principles established

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  • Where a right exists, there must be a corresponding remedy; the maxim ubi jus ibi remedium supports reinstatement so a suit may be heard on its merits.

Court orders

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  1. 1.This application is allowed
  2. 2.Costs shall be in the cause
  3. 3.The parties will come to court for directions on 7/10/2024
  4. 4.The applicant is directed to serve the orders issued by the court today upon the respondent within 7 days of delivery of this ruling

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 1 Rule 10(2) and 22
  • Civil Procedure Rules 2010Order 17 Rule 2
  • Civil Procedure Rules 2010Order 12 Rule 7
  • Civil Procedure Rules 2010Order 5 Rule 17
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure ActSection 3A

Cases cited (1)

  • Ashby Versus White
    (1703) 92 ER 126
Jurisdiction invoked
Order 1 Rule 10(2) and 22, Order 17 Rule 2, Order 12 Rule 7, Order 5 Rule 17 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and 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, "Ibdirahim (Suing as the legal representative of the Estate of Sharrif Ibrahim) v Abdirahim (Environment & Land Case E004 of 2021) [2024] KEELC 5098 (KLR)", Case Analysis (2024). Isiolo ELC No. 004 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5098/eng@2024-07-01

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