[2017] KEELC 486 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MURANG’A

ELC MISC. NO. 5 OF 2017

____________________________________________________________

DONALD MWANGI NJOROGE APPLICANT

VS

LUCY WANJIRU KARANJA (legal representative of the late

JOHN MWANGI KARANJA) RESPONDENT

RULING

1. This is an application brought by way of a Notice of Motion dated 10. 4.15 for orders that;

a) The Court be pleased to grant the Applicant leave to lodge an appeal.

b) The Court be pleased to extend time within which the Applicant can lodge an appeal against the ruling and order made in Murang’a PMCC No. 234 of 1998 on 24. 1.14 in respect of an application dated 5. 5.12.

c) Costs to the Applicant.

2. The application is premised in the following grounds;

a) The ruling relating to the intended appeal was delivered on 24. 1.14 in absence of the Applicant and his counsel as no notice was issued to notify them of the delivery of the same.

b) The Applicant became aware of the ruling when counsel for the Applicant was served with a bill of costs on 12. 6.14 after expiry of the stipulated time to apply for leave.

c) That the 30 days allowable to file an appeal had also lapsed hence the need to seek leave.

d) It is just for the leave to be granted in order to allow the Applicant to exhaust the Court process.

e) The delay was not inordinate and is excusable.

3. The application was supported by the affidavit of Donald Mwangi Njoroge the Applicant. He depones that he was the Plaintiff in the Murang’a PMCC No. 234 of 1998. The Respondent is the wife of the late Defendant in the said suit. He reveals that the Respondent has since been confirmed as the legal representative of the said John Mwangi Karanja by the High Court at Nyeri in Succession cause no. 1033 of 2010. That his effort to enjoin the Defendant in the lower Court was defeated when the Court declined his application dated 5. 5.12 in a ruling dated 24. 1.14.

4. That the said ruling was delivered in the absence of both him and his Advocate as no notice had been issued. He now prays for leave from this Court as he did not have a chance to request for leave during the delivery of the said ruling. He asserts that his Advocate became aware of the ruling when he was served with a bill of costs. That the filing of this application was further delayed due to the delay in obtaining the typed Court proceedings and has presented a certificate of delay to that effect. He contends that his application has merit as the trial Court failed to enjoin the Respondent for no good reasons, therefore his appeal has high chances of success. He prays for the application to be allowed.

5. The Respondents filed a replying affidavit on 20. 7.15 sworn by Lucy Wanjiru Mwangi the Respondent. She strongly opposes the application terming it frivolous and vexatious. That it is devoid of merit. She contends that counsel for the Applicant was aware of the ruling date but failed to attend Court and failed to peruse the Court file thereafter. That the Counsel for the Applicant participated in the taxation of the bill of costs and they reached a consent to tax the bill at Kshs. 22,000/-. She asserts that the delay in filing the application was inordinate as it has been filed 8 months after the said ruling. Further that the intended appeal has no chances of success as a deceased party cannot be substituted after 11years. She urges the Court not to exercise its discretion in favour of an indolent and dishonest litigant. That should the application be disallowed no prejudice will be suffered because the Applicant failed to follow the laid down rules.

6. Parties were then directed to file written submissions which I have considered.

7. The Applicant in his submissions largely reiterates the contents of his supporting affidavit and adds that in considering whether to give leave to file an appeal out of time the Court should take into account the time taken in obtaining the typed Court proceeding as per section79(g) of the Civil Procedure Act. That it was impossible to file the appeal without the knowledge that the ruling had been delivered. That the Memorandum of Appeal attached raises serious issues for determination firstly that the Respondent ought to have been substituted under order 24 rule 4(2) and secondly if the Respondent was enjoined in the lower Court it would have assisted the Court to fully determine the issues therein. The trial Court made erroneous conclusions. That the appeal has high chances of success. He denies the averments made by the Respondent in her replying affidavit and asserts that his Advocate had no knowledge of the ruling delivered and that he was not indolent and dishonest.

8. The Respondent submitted that the discretion of the Court to extend time should not be exercised to assist a party to obstruct or delay the course of justice. The Applicants advocate had already agreed with the Respondent’s counsel on the 25. 8.14 for the bill to be taxed at Kshs. 22,000/-. That bill of costs was dated 13. 5.14. That the reason the Applicant’s application was dismissed in the lower Court was that the suit had abated owing to failure on the part of the Applicant to substitute the Respondent upon death of her husband within the stipulated time. The Applicant failed to give sufficient reasons for the inordinate delay to the lower Court. That the present application now seeks to move this Court to allow for substitution 12 years after the death of the Respondent’s husband. That the husband of the Respondent died on 7. 06. 01 and the Respondent was substituted on 29. 11. 10 9 years later. The delay was inordinate and it was not sufficiently explained.

9. She has invited the Court to look at various case law- Shah Vs Mbogo & Anor HCCC No 1087 of 1965; Kenya Farmers’ Cooperative Union Limited vs Charles Murgor HCCC No. 1671 of 1994; Wallace Kinuthia Vs Anthony Ndungu & 2 others ELC No 542 of 1999. Further reference is made to Order 24 rule 4(3) that expressly provides that if no application for substitution is made within one year after death of the Defendant the suit abates. That in that regard the suit abated over 11years before the date of the present application.

Analysis and determination

10. Appeals lie as of right for applications made under Order 43 1(a) and (m) of the Civil Procedure Rules, 2010. The current application is for leave to lodge an appeal as well as for extension of time within which the Applicant can lodge an appeal against the ruling in PMCC No 234 of 1998 in respect to the Applicant’s application for substitution of the Respondent herein in the suit in the lower Court, which ruling was delivered on the 24. 1.14. The Applicant is therefore within his right to apply for extension of time within which to lodge the appeal.

11. Did the Applicant have notice or knowledge of the date for the delivery of the ruling? The main ground relied on by the Applicant is lack of knowledge of the delivery of the ruling. I have reviewed both the proceedings and the ruling and noticed that on the 20. 12. 13 the Learned Resident Magistrate gave the date for the ruling as 10. 1.14 in the presence of Mr. Mbuthia for the Plaintiff /Applicant and Mr. Bwonwonga for the Defendant/Respondent. It would appear that the said ruling was not delivered on the 10. 1.14 but on the 24. 1.14. No reasons have been given for the postponement of the delivery of the ruling and neither is there notice to the parties in the file as to the date of the 24. 1.14. However, on the 24. 1.14 the ruling was delivered in the presence of Mr. Kinuthia who held the brief of Mr. Bwonwonga for the Plaintiff. J K Mbuthia Counsel for the Defendant was absent. From the record the Plaintiff was represented by Mr. Mbuthia and not Bwonwonga as stated on the record. I take it as an error on the part of the Learned Magistrate. 28 days right of appeal was duly granted by the learned Magistrate. Parties were in Court again on 30. 6.14 for the taxation of the bill of costs where the Applicant was represented by Mr. Munene Holding brief for Mr. Mbuthia and Bwonwonga represented the Defendant. The Appellants explanation that he got to know about the delivery of the ruling on receipt by his advocates of a hearing notice that the matter was coming for taxation is consistent with the record of the proceedings earlier alluded above.

12. Is the Applicant guilty of delay? It is on record that the Applicant filed the application for leave on 10. 4.15, one year 3 months after the delivery of the ruling. The explanation given for this is that the delay was occasioned by the typing of the proceedings which took longer. It is on record that the Applicant applied for typed proceedings on the 23. 7.14 and a certificate of delay in typing the proceedings was issued by the Court on 26. 3.15. The fact of the delivery of the ruling having been brought to the attention of the Applicant in June 2014, one would have expected the Applicant to immediately file the memorandum of appeal. What was critical to filing the Memorandum of appeal was the ruling (even a copy) and not so much the proceedings at that point in time. Was the Applicant prudent in the action that he took? Most certainly not. The Applicant filed the Memorandum of Appeal in 10. 4.15 which in the circumstances of the case would ordinarily be taken as inordinate. However, given the explanation tendered and guided by Section 79G of the Civil Procedure Act that provides that appeals from the lower Courts to the High Court should be filed within a period of 30 days from the date of the decree or order appealed against and that the time for the preparation and delivery to the Applicant of a copy of the decree or order is excluded from the 30-day period. I find no reason to fault the Applicant in that regard.

13. The proposed memorandum of appeal dated the 10. 4.15 proffers two grounds of appeal to wit: that the Learned Magistrate erred in law and fact in declining to grant an order for substitution when the Respondent was duly cloth with legal capacity to be so substituted and secondly that the Learned Magistrate misdirected himself on his finding when he ruled that the Applicant’s claim had been fully satisfied whilst the contrary position obtained. It is noted that the Applicant has not disclosed in his proposed appeal what further interest or issues arising from the orders of the Learned Magistrate remained undetermined, which ought to have been determined by the Lower Court and it failed warranting the appeal.

14. Order 24 rule 7 (2) of the Civil Procedure Rules provides as follows;

“(2) 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. “

15. I have examined the application in the lower Court which is being appealed against. That application sought to substitute the Respondent herein in place of John Mwangi Karanja who died in 2001 as per the attached copy of the death certificate. It would appear that the Respondent obtained limited letters of grant of administration ad litem in 2010, 9 years after the death of the said John Mwangi Karanja. Given the nature of the claim in the suit being land and not of a personal nature, the suit survived the death of the Defendant. However, no application was made for substitution of the deceased Defendant with the legal representative within the stipulated period of one year. By the time of filing the application for substitution in 2012, the suit had abated in 2002, a period of over 10 years. It therefore follows that there was no suit in which substitution could be made since it had abated one year after the death of the Defendant. An order for substitution in those circumstances could only have been made in error.

16. In the case of Kenya Farmers Cooperative Union Limited vs Charles Murgor HCCC No. 1671 of 1994 the Court held that there must first be an application for revival of the suit after abatement before substitution. An order for substitution before revival would be a nullity in law and would be of no effect as the matter goes to the jurisdiction of the Court since it would have no jurisdiction to hear and determine a matter that has abated by operation of law nor to hear and determine a suit that had already abated by operation of law. Though the Magistrate dismissed the application for other reasons, the said application in my view would have met the same fate but for the reason I have given above.

17. From the forgoing therefore, the application is dismissed on grounds that the suit abated by operation of law, the same has not been revived so much so that there really is no cause of action, it will not amount to a fair trial to determine a matter whose cause of action rested by abatement over 10 year ago by operation of law.

18. The application therefore lacks merit and is dismissed with costs to the Respondent.

DATED, DELIVERED AND SIGNED AT MURANG’A THIS 18TH DECEMBER 2017.

J.G. KEMEI

JUDGE