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ELCAllowedAd Litem Application No. 79 of 2013 (High Court at Eldoret); substitution application in the main suit· [2013] KEELC 28 (KLR)

Emily Misoi v Director Sambu Farm & 3 others [2013] KEELC 28 (KLR)

Environment and Land Court
26 November 2013
323 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a late application to replace a deceased defendant in a land suit because no one objected and no one would be harmed.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret, delivered by Munyao Sila J on 26 November 2013, determined an application to substitute the original 2nd defendant, Kipketer arap Songol, who died on 27 April 2012, with Wilfred Kimeli Keter. Keter had earlier obtained letters of administration ad litem in High Court Ad Litem Application No. 79 of 2013 at Eldoret, granted on 20 May 2013, limited to defending the suit. The court examined Order 24 of the Civil Procedure Rules, which permits substitution where a party to a suit dies and the cause of action survives. The judge expressed uncertainty as to whether the cause of action survived, since the deceased had been sued in his capacity as a director of Sambul Farm, but adopted a pragmatic course, holding that no serious harm would be done by allowing the substitution. The court further noted that the application was filed outside the one-year window prescribed by Order 24 Rule 4(3), but allowed it because the other parties raised no objection and no serious prejudice would result. The application was accordingly allowed, Keter was substituted as 2nd defendant, and the suit was directed to proceed on that footing. The court made no orders as to costs. No authorities were cited in the ruling.

Key legal issues

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01

Whether substitution of a deceased defendant can be allowed where the cause of action may not survive against a defendant sued in his capacity as director

Holding

The court expressed doubt that the cause of action survived but allowed the substitution since no serious harm would be done to the parties.

Reasoning

The 2nd defendant had been sued as a director of Sambul Farm, raising doubt whether the cause of action survived his death under Order 24. The court, however, adopted a pragmatic approach, reasoning that allowing the substitution would cause no serious harm, especially as the grant ad litem had already been issued for the purpose of defending the suit.

p. 2
02

Whether an out-of-time substitution application may be allowed

Holding

Yes. Despite being filed outside the one-year period prescribed by Order 24 Rule 4(3), the application was allowed because there was no objection and no serious prejudice would be caused.

Reasoning

Order 24 Rule 4(3) requires a substitution application to be made within one year of death. The application here was late, but the other parties raised no objection, and the court found that no serious prejudice would flow from allowing it, exercising its discretion in favour of substitution.

p. 2

Legal principles established

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  • Order 24 of the Civil Procedure Rules permits substitution of a deceased party where the cause of action survives the death.
  • A substitution application filed out of the one-year limitation in Order 24 Rule 4(3) may still be allowed where no objection is raised and no prejudice is caused.

Court orders

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  1. 1.The application is allowed and Wilfred Kimeli Keter is permitted to be substituted in place of Kipketer arap Songol (deceased) as the 2nd defendant
  2. 2.The suit shall proceed on that premise
  3. 3.No orders as to costs
Jurisdiction invoked
Order 24 of the Civil Procedure Rules (substitution of a deceased party where the cause of action survives)

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, "Emily Misoi v Director Sambu Farm & 3 others [2013] KEELC 28 (KLR)", Case Analysis (2013). Ad Litem Application No. 79 of 2013 (High Court at Eldoret); substitution application in the main suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/28/eng@2013-11-26

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