[2021] KECPT 510 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.478 OF 2011

DIANA WANJIKU NDEGWA ...........................................................................CLAIMANT

VERSUS

METHI & SWANI CO-OPERATIVE .....................................................1ST RESPONDENT

DANIEL NJUGUNA GITHAE..................................................................2ND RESPONDENT

MURIGI NJUGUNA................................................................................3RD RESPONDENT

STEPHEN MURIU....................................................................................4TH RESPONDENT

BONIFACE NDIKO................................................................................5TH RESPONDENT

ALICE WAIRIMU ..................................................................................6TH RESPONDENT

RULING

Vide the Application dated 28. 11. 2019, the Claimant has moved this Tribunal seeking for the following orders :

1. That this Honourable Tribunal be pleased to revive the suit herein;

2. That this Honorable Tribunal be pleased to extend time within which to substitute the Claimant with her legal representative ;

3. That this Honorable Tribunal be pleased to substitute the Claimant, Diana Wanjiku Ndegwa (Deceased) with James Kariuki Ndegwa;

4. That cost of this application be provided for.

The Application is supported by the grounds on its face and the Affidavit sworn by James Kariuki Ndegwa on 28. 11. 2019.

The 2nd -6th Respondent have opposed the Application vide the Replying Affidavit sworn by 2nd Respondent Daniel Njuguna Githae on 20. 2.2020.

The 1st Respondent did not file any response to the Application irrespective of service. Vide the directions given on 24. 8.2020, the Application was canvassed by way of written submissions. The Claimant filed his written submissions on 8. 9.2020 while the Respondent did not so despite service.

Claimant’s Contention

Applicant case that the instant suit has abated and that it is necessary for the Orders sought to be granted so as to progress the same.

That the Claimant died on 31. 7.2013 and that her Dependents got to learn and/or know about the pendency of this claim in April, 2019. That upon becoming aware of existence of the claim they promptly instructed their current counsel on record to take up the matter. That upon taking up the matter and perusing the court record the advocate noted that the claim had abated thus necessitating the instant Application. That failure to substitute the Applicant with the Claimant (Deceased) within the prescribed period was occasioned by the fact that the claim was not within his knowledge.

That the claim involves land and that the proposed amendments go to the core of the suit.

2nd -6th Respondent’s Case

The crux of the 2nd – 6th Respondents opposition to the Application is that the Applicant has not shown cause why he did not originate the instant Application in good time. That they took inordinately too long to take steps to replace the Claimant. That the suit has abated by operation of law and that no Application for substitution within a period of one year after the death of the Claimant.

Issues for determination

The instant application has presented the following issues for determination:

a. Whether the Applicant has shown sufficient cause to warrant revival of the claim;

b. Whether the applicant has established a proper basis to warrant his substitute with the Claimant (Deceased);

c. Who should meet the costs of the Application?

Revival of suit

Order 24 Rule 7 of the Civil Procedure Rules deals with abatement and dismissal of suits. Sub- rule (1) provides thus:

“ 24 (7) (1)- Where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action..”

Sub- rule 2 provides thus:

“24 (7) (2)- The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or trustee or official receives 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 presented 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..”

It is thus apparent that the law provides for mechanisms for reviving a claim which has abated. The party so applying, however, ought to demonstrate that he/she was presented by sufficient cause from continuing the suit.

The Applicant, herein has stated that he only learnt about existence of this claim in April, 2019 and immediately applied for letters of administration and litem. That the said letters were granted on 23. 9.2019. The question we ask ourselves is whether this explanation constitutes sufficient cause within the meaning of Order 24 (7) (2). Our answer I in the affirmative upon consideration of the material on record and the proceedings, there is nothing to show that the dependents of the deceased Claimant knew about the pendency of these proceedings and elected not to continue them.

Furthermore, we note that the subject matter of the claim revolve around land and that if the claim is not revived, the Deceased’s dependents will greatly be prejudiced.

Conclusion

The upshot of the foregoing is that we find merit in the Application and allow it in terms of prayers 1,2 and 3. No orders as to costs.

Ruling signed, dated and delivered virtually this 25th day of March, 2021.

Hon. B. Kimemia Chairperson Signed 25. 3.2021

Hon. Jane Mwatsama Deputy Chairperson Signed 25. 3.2021

Mr. P. Gichuki Member Signed 25. 3.2021

Mrs. Kariuki Advocate for Claimant/Applicant

No appearance for Respondent

Mention for directions on 24. 5.2021. Notice to issue.

Hon. B. Kimemia Chairperson Signed 25. 3.2021