[2022] KEELC 2414 (KLR)

(Deceased) v Trusteed & another; Ndirangu & 3 others (Applicant) (Environment & Land Case 445 of 2017) [2022] KEELC 2414 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEELC 2414 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyahururu

Environment & Land Case 445 of 2017

YM Angima, J

May 5, 2022

Between

Naftaly Wachiuri Wamugunda (suing as the personal representative of the Estate of Gitahi Wamugunda Kabati (Deceased)

Plaintiff

and

Settlement Fund Trusteed

1st Defendant

Wilson Gachanja

2nd Defendant

and

Mary Muthoni Ndirangu

Applicant

Joseph Gitonga Ndirangu

Applicant

Patrick Wamugunda Wachiuri

Applicant

Irene Njeri Wachiuri

Applicant

Ruling

1. By a notice of motion dated November 24, 2021 grounded uponsections 1A, 1B 3A of the Civil Procedure Act (cap 21), Order 24 Rules 3 and 7 (2) of the Civil Procedure Rules, 2010(the Rules), and all other enabling provisions of the law the Applicants sought the following orders: -(a)That the instant suit, having abated, be revived for hearing on merits.b)That the honourable court be pleased to extend time and order substitution of the deceased plaintiff with the Applicants herein, Mary Muthoni Ndirangu, Joseph Gitonga Ndirangu, Patrick Wamugunda Wachiuri and Irene Njeri Wachiuri.(c)That the costs of this application be provided for.

2. The said application was based upon the grounds set out on the face of the motion and the contents of the supporting affidavit sworn jointly by the applicants on November 24, 2021and the annexures thereto. It was contended that the original Plaintiff, Naftaly W. Wamugunda, died on 31st October, 2012 during the pendency of the suit and that his brother, Peter W. Wamugunda was appointed a personal representative for purposes of the suit in 2015. It was stated that he also died in 2018 before his application for substitution and revival of the suit could be heard. The Applicants contended that they were still interested in pursuing the suit after their appointment as personal representatives in 2021 hence the application.

3. The 2nd defendant filed grounds of opposition dated January 31, 2022 in opposition to the application. The 2nd defendant contended, inter alia, that there had been a cumulative delay of more than 9 years in seeking revival of the suit and substitution of the original plaintiff; that there was no sufficient cause or reasonable explanation for the inordinate delay; and that the defendants shall suffer prejudice if the orders sought were granted. The 2nd defendant did not, however, file any replying affidavit to respond to the factual matters set out in the applicants’ supporting affidavit. The record shows that the Attorney General appearing for the 1st defendant did not file any response to the application.

4. When the said application was listed for inter partes hearing, it was directed that the same shall be canvassed through written submissions. The parties were consequently given timelines within which to file and serve their respective submissions. The record shows that the Applicants filed theirs on February 18, 2022whereas the 2nd defendant filed his on March 1, 2022. The Attorney General did not file any submissions on behalf of the 1st defendant.

5. The court has considered the said application, the 2nd defendant’s grounds of opposition and the submissions on record. The court is of the opinion that the main question for determination is whether or not the applicants have made out a case for revival of the suit and extension of time for substitution of the deceased plaintiff.

6. Order 24 Rule 3 of the Rules stipulates as follows on abatement of suits:3. (1) Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.(2)Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff.Provided that the court may for good reason on application, extend the time.”

7. On the other hand, Order 24 Rule 7 (2) of the Rules provides for revival of abated suits as follows:“The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the trustee or official receiver in the case of a bankrupt plaintiff may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit.”

8. There is no doubt that the original plaintiff died in 2012 during the pendency of the suit. It is also evident from the material on record that his brother Peter Wamugunda obtained a limited grant in 2015 for the purpose of prosecuting the suit but died in 2018 before he could be made a party to the suit. The currentapplicants were appointed personal representatives in 2021 and they filed the instant application in the same year.

9. The court is of the opinion that even though there has been considerable delay in seeking revival of the abated suit and substitution of the deceased plaintiff, the applicants are not entirely to blame for the delay. The material on record shows that the delay was mainly on the part of the previous administrator who died in 2018. The record further shows that the applicants were appointed administrators in September 2021 and they moved the court in November, 2021 by filing the instant application. The court is of the opinion that the absence of an administrator prior to 2021 was sufficient cause which could have prevented the Applicants from filing the application earlier and they ought not be punished for the sins of the previous administrator.

10. The court is further of the persuasion that so far as is reasonably practicable suits ought to be heard and determined on merit as opposed to being dismissed for procedural and technical lapses especially upon the demise of the original litigant. The court is obligated to dispense substantive justice without undue regard to technicalities of procedure both under article 159 (2) (b) of the Constitution of Kenya 2010 and section 19 (2) of the Environment and Land Court Act. Accordingly, the court is inclined to grant the application.

11. The upshot of the foregoing is that the court finds merit in the instant application. In the result, the court makes the following orders for disposal of the notice of motion dated November 24, 2021. a.The notice of motion dated November 24, 2021be and is hereby allowed in terms of order Nos 1 and 2 thereof.b.Costs of the application shall be in the cause.c.The Applicants shall be at liberty to amend the plaint to reflect the substitution of the deceased Plaintiff.

It is so ordered.RULING DATED AND SIGNED AT NYAHURURU AND DELIVERED VIA MICROSOFT TEAMS PLATFORM THIS 5TH DAY OF MAY, 2022. In the presence of:No appearance for the PlaintiffMr. Waudo for the 2nd DefendantCA- Carol……………………Y. M. ANGIMAJUDGE