[2022] KEELC 464 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC CASE NO.1368 OF 2013

DANIEL MULWA KAVITHI...........................................................................................................PLAINTIFF

-VERSUS-

THE HONOURABLE ATTORNEY GENERAL................................................................1ST DEFENDANT

THE DISTRICT LAND ADJUCIATION & SETTLMENT OFFICER, MACHAKOS...2ND DEFENDANT

THE DISTRICT SURVEYOR, MACHAKOS......................................................................3RD DEFENDANT

THE DISTRICT LAND REGISTRAR MACHAKOS.........................................................4TH DEFENDANT

NZOMO MSAU........................................................................................................................5TH DEFENDANT

WILLY MUSAU.......................................................................................................................6TH DEFENDANT

MUTUKU NZOMO.................................................................................................................7TH DEFENDANT

RULING

1. This is the Notice of Motion dated 22nd September 2020 brought under section 1A, 1B and 3A of the Civil procedure Act, Order 17 Rule 1, Order 24, Rule 1 and 3 and Order 51 Rule 1 of the Civil Procedure Rules and other enabling provisions of the law.

2. It seeks orders;

1. Spent.

2. Spent.

3. The order issued on 13th June 2018 dismissing the suit for want of prosecution be reviewed and/or rescinded.

4. Upon reinstatement of the suit, this court be pleased to substitute the Plaintiff, Daniel Mulwa Kavithi, now deceased with Jonah Kavithi Daniel, the administrator.

5. That the costs of this application be in the cause.

3. The grounds are on the face of the application and are set out in paragraphs 1 to 18.

4. The application is supported by the affidavit of Jonah Kavithi Daniel, the Applicant and Administrator of the Estate of the deceased, sworn on the 22nd September 2020.

5. The application is opposed. There is a replying affidavit sworn by Mutuku Nzomo the 7th Defendant/Respondent, herein on his own behalf and that of the 5th and 6th Defendants/Respondents on the 21st October 2020.

6. On the 23rd June 2021 the court with the consent of the parties directed that the notice of motion be canvassed by way of written submissions.

The Plaintiff’s submissions

7. They are dated 23rd September 2021. He submits that the suit land constitutes the ancestral land to the Estate of the deceased since 1966. Further that the delay in prosecuting this suit is excusable owing to the in action of the previous counsel on record who never notified nor advised the estate of the deceased or notified the court.

8. The Applicant and the estate of the deceased are beneficial owners of LR No. Machakos/Mua Hills Settlement Scheme/800.

9. He raises the following issue for determination; whether the Plaintiff has satisfied the conditions for setting aside the order dated 12th March 2020 dismissing the suit for want of prosecution.

10. He has put forward the case of David Kimutai Kotut vs Mary Jelimo Ruto & 3 Others [2017] e KLR. That a delay of two years where the Plaintiff had died was not intentional, contumelious and inordinate and inexcusable.

11. He further stated that he and the estate of the deceased stand to lose their right to inheritance and property while the Defendants will not suffer injustice because they will exercise their right to be heard by granting a conditional reinstatement of the suit to be determined in such reasonable and limited time. He has put forward the cases of Joseph Kinyua vs G. O. Ombachi [2019] eKLR; Wilson Chepkwony vs Jamleck Mwangi Kariuki [2019] e KLR. He prays that the application be allowed and the suit be set down for hearing.

The 5th – 7th Defendants Submissions

12. They are dated 15th November 2021. The applicant does not explain where he has been since 6th December 2015 when the original plaintiff passed on. No explanation has been given as to why the applicant did not move the court once he obtained Letters of Administration intestate on 4th May 2017. There is no evidence that the Grant of Letters of Administration dated 4th May 2017 was ever brought to the attention of the Plaintiff’s previous counsel, so that the court could interrogate the alleged mistake of counsel.

13. The Applicant is guilty of laches, in presenting this application. They have put forward the case of Gelu Unicrafts Ltd & 2 Others vs Usafi Services Ltd [2017] e KLR.

14. The applicant has not satisfied any of the parameters for seeking a “review” as prayed. There is discovery of new and important matters raised that were not within his knowledge on 12th March 2020 which he could not have established using reasonable diligence since the filing of the suit on 12th November 2013.

15. The applicant is undeserving of the exercise of discretion by this court. They pray that the application be dismissed with costs to the 5th to 7th Defendants.

16. I have considered the notice of motion and the affidavit in support. I have also considered the response thereto. The issue for determination is whether this application is merited.

17. It is not in dispute that the Plaintiff passed away on 6th December 2015. By virtue of order 24 rule 3(2) of the Civil Procedure Rules, the suit abated on 6th December 2016.

18. It is the Applicant’s case that he obtained Grants of Letters of Administration intestate to the estate of the deceased on 10th May 2017. The matter was mentioned on 5th March 2018, 14th May 2018, 10th June 2019, 29th October 2019 and 12th March 2020. All this time the Applicant failed to regularize his position.

19. If the court were to reinstate this suit, it would be an act of futility as the same abated by operation of the law on 6th December 2016. In the case of Kenya Farmers Co-operative Union Ltd vs Charles Murgor, t/a Kaptabei Coffee Estate [2015] e KLR Judge H.P.G Waweru held that:-

“…..But it is really a matter that goes to the jurisdiction of the court. Does the court have jurisdiction to order substitution (except in an application to revive the suit?) where the suit has already abated by operation of the law? Obviously not. Does the court have jurisdiction to hear and determine a suit that has already abated by operation of the law? Certainly not. If a suit has abated, it has ceased to exist. There is no suit upon which a trial can be conducted and judgment pronounced. Purporting to her and determine a suit that abated is really an exercise of futility. It is a grave error on the face of the record. It is an error of jurisdiction. It can be raised at any time.”

I am guided by the above authority.

20. I have gone through the notice of motion and I find that the applicant does not seek the revival of the suit. I find that this court has no powers to reinstate a suit that has not been revived.

21. I also find that this application has been brought after undue delay.

22. In conclusion, I find that no sufficient reason has been advanced to warrant this court to grant the orders sought.

23. I find no merit in this application and the same is dismissed with no orders as to costs.

It is so ordered.

DATED, SIGNED AND DELIVERED NAIROBITHIS 24TH DAY OF MARCH, 2022

……………………….

L. KOMINGOI

JUDGE

In the presence of:-

Mr. Mapesa for the Plaintiff

No appearance for 1st and 4th Defendants

Mr. Haggai for Mr. Munyasya for the 5th -7th Defendants

Steve - Court Assistant