[2024] KECA 225 (KLR)

Chiponda (Deceased) & another (As legal representative the Estate of Martin Chiponda) v Bandari Investment Co Limited & 15 others (Civil Application E033 of 2021) [2024] KECA 225 (KLR) (8 March 2024) (Ruling)

Neutral citation: [2024] KECA 225 (KLR)

Republic of Kenya

In the Court of Appeal at Mombasa

Civil Application E033 of 2021

AK Murgor, JA

March 8, 2024

Between

Martin Chiponda (Deceased) And Francis Randugu Mwabuni (as legal representative the Estate of Martin Chiponda)

Applicant

and

Bandari Investment Co Limited

1st Respondent

National Police Service

2nd Respondent

Regional Coordinator, Coast

3rd Respondent

The Hon attorney General

4th Respondent

County Government of Mombasa

5th Respondent

Oriole Investment limited

6th Respondent

Martin Chiponda

7th Respondent

Hashim Loma Makazi

8th Respondent

Omar juma Salim Chivasi

9th Respondent

Mohamed Makazi

10th Respondent

Caroline Ochieng

11th Respondent

Mama Damaris

12th Respondent

Shida Charo

13th Respondent

Salim Juma

14th Respondent

Rashid Juma

15th Respondent

M Kashindo

16th Respondent

(An appeal from the judgment of the Environment and land Court at Mombasa (Sila Munyao, J.) delivered on 28th January 2021 in Mombasa Constitutional Petition No. 15 of 2017 Petition 15 of 2017 )

Ruling

1. By a Notice of motion dated 30th June 2023, brought pursuant to rule 53 of the Court of Appeal rules, 2022, the applicant, Francis Randugu Mwabuni, seeks to be appointed legal representative of the estate of Martin Chiponda (deceased) who died on 18th February 2023 and to replace him as the 1st applicant in Mombasa Court of Appeal Civil Application No. E033 of 2021 and Mombasa Court of Appeal Civil Application No. E034 of 2021 to avoid them abating.

2. The Notice is brought pursuant to the grounds on its face and an affidavit in support sworn by the applicant in which he contends that he is the brother to the deceased, who died on 18th February 2023, and that he was appointed as a legal representative of the estate of Martin Chiponda on 24th May 2023; that he is familiar with matters concerning this and related applications, as well as relevant cases and the judgment of the court below. He claimed to be a respondent in Mombasa Court of Appeal Civil Application No. E034 of 2021, and was also the 1st defendant in Mombasa ELC No. 15 of 2017 Bandari Investment Company Limited vs Martin Chiponda and 21 Others, that was dismissed on 28th January 2021 and gave rise to this application, and one concerning pre-emption rights filed by Bandari Investment Co. Limited; that the order of the court in Mombasa Court of Appeal Civil Application No. E034 of 2021 was the genesis of the applicants’ request for the empaneling of a larger bench of this Court to address the doctrine of pre- emption under the sub judice rule in civil law in Kenya; that the directions of the President of this Court that granted the empaneling of a larger bench under rule 29 may be rendered nugatory unless he is joined in this application to replace the deceased applicant, and thereafter expeditiously prosecute the applications now pending before the Court; that grave prejudice will be occasioned to the parties and public, if this Court does not set out the law on the rights of pre- emption in the civil law; that it is therefore proper for the applicant to be granted the order to replace the deceased as prayed.

3. The 1st respondent filed a replying affidavit in response, sworn by Ken Tobias Odero Sungu, on 21st October 2023 where he contended that in a letter dated 12th May, 2023, the Deputy County Commissioner, Kisauni stated that the estate of Martin Chiponda (deceased) comprised of 14 beneficiaries, and that an application for a grant of letters of administration was filed by the deceased’s father, sister, brothers and wife; that other than the deceased’s wife and father, 12 out of 14 of beneficiaries did not sign the consent, relied upon by the applicant to support the application for Grant of Letters of Administration Ad-litem before the lower court; that had the lower court considered this legal issue, it would not have issued the Limited Grant of Letters of Administration Ad-litem dated 24th May 2023; that the effect of this anomaly is that the Letters of Administration Ad-litem dated 24th May, 2023, are a nullity and should this Court accept that they are a nullity, then it should not rely on them to substitute the deceased with the applicant.

4. During the virtual hearing, learned counsel for the applicant, Mr. Kimani relied on the applicant’s written submissions and in highlighting them, counsel stated that the applicant had obtained the necessary letters for substitution of the deceased; that it is in the interest of justice, this Court should allow the application, as it will expedite the hearing of a pending application before this Court. Counsel further submitted that any objection to the Letters of Limited Grant Ad litem cannot be considered by this Court and that the 1st respondent had raised the objection too late in the day.

5. In rebuttal, learned counsel for the 1st respondent Mr. Munyithya objected to the application on the basis that the Letters of Limited Grant Ad Litem were a nullity and ought not to be relied on as the basis of the substitution.

6. On behalf of the 2nd to 6th respondents, learned counsel for the State, Mr. Mkan did not oppose the application for substitution.

7. In so far as an application for substitution is concerned, rule 53 (2) of this Court’s rules, 2022 provides that:“A civil application shall not abate on the death of the applicant or the respondent but the Court shall, on the application of any interested person, cause the legal representative of the deceased to be made a party in place of the deceased.”

8. The tenets of this provision were emphasized by this Court in the case of Susan Wamaitha & another vs Mary Njeri Kimani & another [2015] eKLR where the Court observed that:“By dint of Rule 51 (2) of the Rules of this court, applications in this Court do not abate on the death of the applicant or the respondent and the Court is enjoined, on the application of any interested person, to cause the legal representative of the deceased to be made a party in place of the deceased. If no application is made within 12 months, the application abates.”

9. From the above, it is clear that upon the application of any interested person, the Court is enjoined to cause the legal representative of the deceased to be made a party in place of the deceased. If no application is made within 12 months, the application abates. In the instant application, the applicant has established the death of the deceased through a death certificate. To validate his appointment as a legal representative, the applicant has also produced Limited Grant of Letters of Administration Ad-litem dated 24th May 2023 issued in his favour. The 1st respondent opposed the application because he alleges that the }Letters of Limited Grant Ad Litem are a nullity as they were obtained without the consent of other beneficiaries. In my view, such assertion is misplaced as it ought to have been made before the court that issued the grant. The record does not disclose that there are any court orders prohibiting their utilization or revoking the Limited Grant Ad-litem issued to the applicant. And neither is there any order declaring them a nullity.

10. As such, the Notice of motion dated 30th June 2023 is merited and is allowed. The applicant, Francis Randugu Mwabuni, the legal representative of the Estate of Martin Chiponda Mwabuni hereby substitutes Martin Chiponda (deceased) as the 1st applicant in Mombasa Court of Appeal Civil Application No. E034 of 2021. Costs in the appeal.

11. It is so ordered.

DATED AND DELIVERED AT MOMBASA THIS 8TH DAY OF MARCH, 2024A. K. MURGOR……………………….JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR