[2016] KEELC 147 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KERUGOYA

ELC CASE NO. 14 OF 2012 (O.S)

FELISTER WAMUHU MUNGAI.............................PLAINTIFF (DECEASED)

VERSUS

MUNGAI KINYURU..........................................DEFENDANT/RESPONDENT

FELISINA NJERI NJOGU...........................................................APPLICANT

RULING

On 18th March 2014, this Court delivered a judgment in favour of the plaintiff FELISTER WAMUHU MUNGAI (now deceased) and ordered that she is entitled to her share, being 1/3 in both land parcels No. LOC 17/KAMAHUHA/139 and LOC 17/KAMAHUHA/124. There is nothing to show that any appeal was preferred against that judgment by the defendant.

However, the plaintiff died on 30th July 2014 as per the certificate of death dated 17th October 2014. The execution process had not commenced.

Her daughter FELISINA NJERI NJOGU who is the applicant herein thereafter moved to the High Court in Muranga and filed Probate and Administration Cause No. 234 of 2015 and was issued with a limited grant of letters of administration ad litem limited for purposes of this suit on 20th April 2015.

Having obtained that limited grant, she filed a Notice of Motion herein on 19th August 2015 seeking to be substituted in place of the deceased plaintiff so that she can proceed with the execution process. In the said Notice of Motion, she seeks the following substantive orders:-

1. The time within which the applicant can be substituted in place of the deceased plaintiff be enlarged.

2. The applicant FELISINA NJERI NJOGU be substituted in place of and instead of the deceased plaintiff FELISTER WAMUHU MUNGAI.

3. That the costs of this application be provided for.

The application is supported by the applicant’s affidavit in which she has deponed, inter alia, that following the death of the plaintiff on 30th July 2014, she obtained a grant of letters of administration ad litem and therefore wishes to be substituted in place of the deceased to enable her execute the judgment.

The application is opposed and in his replying affidavit, the defendant has deponed, inter alia, that he has appealed the judgment and the properties subject of this suit belong to him and in any case, the suit has abated. In a supplementary affidavit, he has deponed further that the applicant who is his daughter is married and cannot inherit from him and he has filed an application at the High Court in Muranga seeking to revoke the limited grant issued to the applicant.

Counsel for both parties elected not to file any submissions.

I have considered the application and the rival affidavits and annextures.

Order 24 Rule 3 (1) and (2) of the Civil Procedure Rules provides as follows:-

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 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”.

3 (2) “Where within one year no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on 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 the Court may,for good reasons on application, extend the time”.emphasis added.

This application as I have shown above, notwithstanding the not very elegant drafting appears to me to be confined only to the substitution of the applicant in place of her deceased mother. The application only cited Order 24 Rule 4 and 5 of the Civil Procedure Rules. It did not also seek the revival of the suit which is provided for under Order 24 Rule 7 (2) of the Civil Procedure Rules. Of course failure to cite the proper legal provisions cannot in itself defeat an application. This Court would have over-looked that in view of the clear provisions of Order 51 Rule 10 (2) of the Civil Procedure Rules and also Article 159 (2) (d) of the Constitution which mandates the Courts to do justice to the parties without undue regard to technicalities. However, as indicated above, there is no specific prayer for the revival of this suit which abated by law one year after 30th July 2014. So by 19th August 2015 when this application was filed, the suit had just abated. The record shows that the applicant moved to the High Court in Muranga to seek a limited grant which was issued on 20th April 2015. That may in itself be a good reason to apply for revival of this suit. However, as that prayer has not been sought and since the suit abated on 31st July 2015, there is no suit in which the applicant can be made a party. The applicant should therefore first seek to have this abated suit revived before seeking to be substituted in place of the deceased plaintiff in terms of the provisions of Order 24 Rule 7 (2) of the Civil Procedure Rules.

Ultimately therefore, the applicant’s Notice of Motion dated 18th August 2015 and filed herein on 19th August 2015 is struck out.

As the parties are a man and his daughter, each shall meet their own costs.

B.N. OLAO

JUDGE

4TH NOVEMBER, 2016

Ruling dated, delivered and signed in open Court this 4th day of November 2016.

Mr. Ombachi for Mr. Njoroge for the Plaintiff/Applicant present

Mr. Mugo for the Defendant/Respondent absent.

B.N. OLAO

JUDGE

4TH NOVEMBER, 2016