[2018] KECA 547 (KLR)

IN THE COURT OF APPEAL

AT NYERI

(SITTING AT NAKURU)

(CORAM: WAKI, SICHALE & KANTAI, JJ.A.)

CIVIL APPEAL (APPLICATION) NO. 75 OF 2013

BETWEEN

FRANCIS SIRMA KIOS..........APPLICANT

AND

KIBORE SIGILAI.................RESPONDENT

(An application under Rule 4, 44, 47, 88, 99 (1) and 99 (3) of the Court of Appeal Rules, an omnibus application for Substitution, Revival of Suit, status quo and Leave to file a Supplementary Affidavit

RULING OF THE COURT

By a plaint filed at the High Court of Kenya at Nakuru, Francis Sirma Arap Kios sued Kibore Sigilai Tele for a declaration that the plaintiff in the suit was the rightful owner of the parcel of land known as Waseges/Nyamamithi Block 4/57 Ogilgei and that the defendant in the suit was a trespasser on that land and should be evicted from the same. The defendant in that suit filed a defence and a counterclaim where he claimed ownership of the same parcel of land. The suit was heard by Anyara Emukule, J., but the plaintiff died in the course of the proceedings. His son, James Kiprokoros Arap Murgor, took over and continued the proceedings after obtaining a grant of letters of administration.

In a judgment delivered on 18th May, 2012 the learned Judge found no merit in the suit which he accordingly dismissed, finding, instead, in favour of the defendant and in the event entered judgment as prayed in the counter claim. There was a notice of appeal and Civil Appeal No. 75 of 2013 (Nakuru) was filed by Francis Sirma Kios on 5th April, 2013. The appeal came for hearing on 31st January, 2017 when the Court’s attention was drawn to the fact that the respondent had died on 20th October, 2014. The appeal was marked as abated under Rule 99 (2) of the rules of this Court.

By Notice of Motion dated 30th January, 2018 filed in court on the same day it is prayed in the main that Civil Appeal No. 75 of 2013 be revived upon Tamarta Chebet and James Kipkoros Murgor being substituted as the legal representative of the respondent,Kibore Sigilai (deceased);that the status quo be maintained pending determination of the appeal and that the appellant be granted leave to file a supplementary record. In grounds in support of the motion it is stated that the respondent died sometime in October, 2014; that the appellant had made attempts to substitute the deceased as required by the rules; that the respondents had eluded the appellant so as to render the appeal nugatory on failure to obtain letters of administration; that it was at the hearing of the appeal in January, 2017 that it had been revealed to counsel for the applicant that there had been an application for grant of letters of administration and that a temporary grant had been issued in favour of Tamarta Chebet and James Kipkoros Murgor. It is further contended that the applicant had made attempts to get the High Court file to obtain a copy of the grant; that the administrators of the estate of Kibore Sigilai had interfered with the suit land and that the appeal would be rendered nugatory if the application was not heard urgently.

The supporting affidavit of Francis Sirma Kios, the applicant, repeats the grounds which we have summarized in this ruling.

James Kipkoros Arap Murgor, the respondent, in a replying affidavit to the motion, depones, amongst other things, that he took over the suit after being substituted accordingly on 23rd July, 2010 and had been a party in the High Court suit since then; that the application for substitution in the High Court had been allowed by consent of the parties; that the applicant had been served with a copy of the grant of letters of administration on 31st January, 2017; that the suit land belonged to his family; that depositions in the applicant’s affidavit in support of the motion contradicted earlier depositions in other affidavits and that the applicant was guilty of laches, the motion not having been brought earlier.

The motion came up for hearing before us on 21st March, 2018 and was urged by learned counsel for the applicant Mr. Steve Biko but was resisted by learned counsel for the respondent, Mrs. Karen Wanderi. It was Mr. Biko’s submission that they got to know of substitution of the respondent on 31st January, 2017 after vain attempts to apply for substitution. Further, that the applicant had an interest to pursue the abated appeal and feared that the suit land could be sold. Mrs. Wanderi, in reply, submitted that she had given a copy of the grant of letters of administration to counsel for the applicant on 31st January, 2017 after it had been issued by the High Court in 2016 and that the grant existed when the appeal was marked as abated on 31st January, 2017. It was learned counsel’s further submission that the applicant had not shown evidence of a missing court file and that the delay in bringing the application was inordinate and unexplained. Mrs. Wanderi informed us that as soon as judgment had been obtained in 2010 the same was executed.

Mr. Biko, in a brief reply submitted that the subject of the abated appeal involved land and that the issue was emotive and we should allow the applicant to pursue rights in an appeal.

We have considered the motion, the rival affidavits and the submissions made.

We note that judgment of the High Court was delivered on 18th May, 2012 when the plaintiff’s suit was found to have no merit and was dismissed. The learned Judge entered judgment on the counter-claim. Civil Appeal No. 75 of 2013 was marked as abated when it was brought to this Court’s attention that the respondent had died on 20th October, 2014.

It is the case of the applicant that he made futile attempts to have the respondent substituted which attempts, says the applicant, were frustrated by the respondent’s failure to take out a grant of letters of administration. The respondent responds by pointing out in the replying affidavit that he entered the suit way back on 23rd July, 2010 and, at paragraph 4 of the affidavit:

“THAT an Application by my Advocate on record seeking leave to have me substitute my late father was adopted by consent and I even testified as a Defendant (See page 50 of the Record of Appeal line 5 and 6 annexture “JKAM1b”.

The respondent further deponed in the replying affidavit that the applicant, being a neighbor of the respondent, would have been in a good position to know when his (the respondent’s) father died.

It is admitted by the applicant that a copy of grant of letters of administration was availed to counsel on 31st January, 2017. We note that the motion was filed on 30th January, 2018, One year after the said document was given to the applicant’s lawyers. The applicant has not given a reasonable explanation for that delay, which we find to be inordinate. We also note the submission by counsel for the respondent that judgment of the High Court was executed way back in 2010.

When this Court was asked to stay the judgment of the High Court pending appeal it was found in the ruling delivered on 10th October, 2013:

“But more fatal to this application was the admission by Mr. Machage at the hearing of the application that the decree of the High Court has effectively been executed and that the respondent has taken possession of all the arable portions of the suit property and is now cultivating the same…”.

Having considered all the principles that apply to an application like the one before us and looking at the material presented in support of the same, we are not persuaded that we should exercise a discretion and revive the abated appeal. The applicant knew in good time that the deceased had died. A copy of grant of letters of administration was presented to counsel for the applicant by counsel for the respondent in Court on 31st January, 2017. There is no explanation for the inordinate delay in presenting this application. The decree of the High Court was executed in 2012.

There is no merit in the application which we dismiss with costs to the respondent.

Dated and delivered at Nakuru this 31st day of May, 2018.

P. N. WAKI

………………………………..

JUDGE OF APPEAL

F. SICHALE

………………………………..

JUDGE OF APPEAL

S. ole KANTAI

………………………………..

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR