[2022] KEHC 1530 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HCCA NO. 157 OF 2018

DOROTHY MUTANU MUTIE (Suing as the legal representative of the estate of

EUNICE MBATHA MUTIE (DECEASED)...................................................................1ST APPELLANT

AGNES MBULA NDUNDA (Suing as administrator of estate ofCHRISTOPHER MUTHOKA

MATHEKA (DECEASED)...............................................................................................2ND APPELLANT

-VERSUS-

APA INSURANCE LTD..................................................................................................1ST RESPONDENT

MAGDALENE SIVINA MUTUNGI (Sued as the administrator of estate ofSOLACE MUNUVE

MUTUNGI (DECEASED).............................................................................................2ND RESPONDENT

(Being an appeal from the ruling of Hon. Mwaniki J. in Makueni Chief Magistrate’s Court CMCC Case No.71 of 2017 pronounced on 21st November, 2018).

JUDGMENT

1. This appeal is said in the Memorandum of Appeal to have been brought by the appellants having been aggrieved by the ruling of the magistrates’ court issued on 21st November 2018 in CMCC No. 71 of 2017 in the Senior Principal Magistrates court at Makueni.

2. I note that the ruling of 21st November 2018 is a short ruling, and was subsequent to another ruling delivered on 9th May 2018.

3. The appeal herein was filed on the following grounds –

1) That the court erred in fact and in law in striking out the 1st and 2nd interested parties from the suit.

2) That the learned magistrate erred in law and in fact in failing to consider the fact that the suit on behalf of the 1st and 2nd interested parties herein was brought by juristic persons and/or proper legal persons.

3) That the honourable court erred in law and in fact in failing to appreciate the fact that the issue of whether the 1st and 2nd interested parties were proper persons had already been determined and was a such res-judicata.

4) The Honourable court failed to consider that striking out parties is an extreme measure that must only be done as a last option and not as a first option.

5) That the honourable court erred in law and in fact in granting orders that were not sought by any party.

6) That the court erred in law and fact in determining issues that were not pleaded and that were not properly placed before it either via an application and/or preliminary objection.

7) That the honourable court erred in failing to determine the preliminary objection dated 12th February 2018 on merit.

8) That the learned magistrate erred in law and in fact by failing to properly scrutinize and analyse the contents of the whole of the appellant’s submissions dated the 6th April 2018.

4. The appeal proceeded through filing of written submissions. In this regard, I have perused and considered the written submissions filed by counsel for the parties.

5. I will start by observing that the ruling delivered on 21/11/2018 is fairly short and relates to an earlier ruling delivered on 9/5/2018. The ruling delivered on 21/11/2018 is as follows :

“The court has considered the application dated 26/6/2018. I do also refer to my ruling made on 09/05/2018 dismissing the applicant’s preliminary objection. I have also considered the submissions filed by the applicants in support of the preliminary objection administratorship and legal representation of a deceased’s estate is not conferred by describing anyone as such – It is conferred by court by way of letters of administration following due process in an application for such letters or grant. It would appear that no such letters or grant was issued to the persons described as administrator and legal representative of the named deceased’s estate. At least none is annexed. So even after considering the submissions by the applicants, I see no reason to vary the orders made on 9/5/2018. The application is dismissed with costs”.

6. It is to be noted that the above ruling, subject to the present appeal, arose from an application to review the court’s orders made on 9/5/2018. I note that this issue of review has not been addressed by the counsel advocates as Mutuku Wambua & associates for the appellants addressed firstly whether petitioners were juristic persons, whether the court was right in considering issues not pleaded, and granting orders not sought, and whether the court erred in striking out the appellants from the case Makueni CMCC No. 71 of 2017. On the other hand Muchui & company for the 1st respondent addressed the issue of late filing of pleadings, and whether this court should consider the preliminary objection which has already been dismissed.

7. Review of court decisions is governed by section 80 of the Civil Procedure Act (Cap.21) and Order 45 of the Civil Procedure Rules. In particular Order 45 Rule 1(a) and (b) provide as follows –

1. (1) any person considering himself aggrieved –

(a) By a decree or order from which an appeal is allowed but from which no appeal has been preferred, or

(b) By a decree or order from which no appeal is hereby allowed – and whom from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed, or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

8. From the above, it follows that it is trite law that the powers of the court in review applications are discretionary powers, and from the above provisions of the law the said powers are limited.

9. Though parties counsel have argued at length on other issues in my view, the question for consideration was whether the trial magistrate properly exercised his powers in revision, relating to the complaint against striking out parties herein.

10. The burden is always on the applicant for revision to demonstrate the discovery of new material evidence or the error on the face of the record, or other sufficient reason on which review orders can be granted.

11. I note herein that the principal issue before the trial court was whether the appellants were proper parties in the proceedings, not whether the appellants were legal persons. That is what triggered their being struck out from the magistrates’ court case.

12. I also note that, up to and until the ruling of the court on 21st November 2018, the interested parties were described as Estate of Eunice Mbatha Mutie and Estate of Christopher Muthoka Mutie. The appeal however is now filed by Dorothy Mutanu Mutie and Agnes Mbula Ndunda as administrators of the two estates respectively. This causes a substantial amount of confusion or uncertainty regarding the actual person who has come to court.

13. Indeed, administrators of estates have locus standi to sue or be parties in proceedings that have a nexus with the respective estates. However, they need to be appointed as such administrators by the succession court. I have not been told that there was any attempt to demonstrate that the two appellants had been appointed by the court or any court as administrators of the estates, so I do not see any error on record that would justify the magistrate court to review its earlier order. It cannot also be said that the magistrate considered extraneous matters in declining to review its earlier decision. In my view, the magistrate only pointed out circumstances which would have persuaded the court to exercise its discretion to review, which were not satisfied by the applicants at that time.

14. With regard to the issues of filing an amended defence and preliminary objection and hearing of the same, I can only state that a party who is not a proper party cannot legally file or prosecute pleadings.

15. To conclude, since the purported interested parties have been struck out as they were not properly before court, if any proper party now wants to come on record, such party should formally apply to the trial court for joinder and the court will consider that application on its own merits.

16. For the above reasons, I find no merits in the appeal. I dismiss the appeal with costs to the 1st respondent.

DELIVERED, SIGNED & DATED THIS 17TH DAY OF MARCH, 2021, IN OPEN COURT AT MAKUENI.

..............................

GEORGE DULU

JUDGE