[2021] KEHC 8197 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 14 OF 2020

I & M BANK LIMITED.......................................................................................APPELLANT

VERSUS

GIBSON OMBOYA SHIRAKU.........................................................................RESPONDENT

AND

RODA OMBOYI NDULA......................................................................................APPLICANT

RULING

1. Before this court for determination are two (2) applications: the first is the Notice of Motion dated 13th November, 2020 (“the first application”) brought by the applicant herein and supported by the grounds laid out on its face and the facts stated in the affidavit of advocate Livingstone Maina Ombete. The applicant sought the orders below:

(i) THAT the applicant, RODA OMBOYI NDULA, as the legal representative of the late GIBSON OMBONYA SHIRAKU who was the plaintiff in the suit which gave rise to the appeal be made a party to the appeal and be allowed to proceed with the appeal on behalf of the deceased.

(ii) THAT the costs of the application be in the cause.

2. The Motion is opposed by way of the replying affidavit sworn by Andrew Muchina, Legal Manager of the appellant.

3. The other application is the Notice of Motion dated 16th December, 2020 (“the second application”) filed by the appellant and supported by the grounds set out on its face and the facts stated in the affidavit of Andrew Muchina.The appellant prayed for the following orders from this court:

(i) Spent.

(ii) THAT this Honourable Court be pleased to declare that the cause of action against the appellant has abated following the demise of the respondent.

(iii) THAT the legal representative of the respondent (deceased) be restrained from taking out further proceedings in relation to the judgment and decree of the Chief Magistrate’s Court in Milimani CMCC NO. 3500 of 2016 (Gibson Omboya Shiraku v I & M Bank Limited).

(iv) THAT the present appeal, Mililani HCCA NO. 14 of 2020 (I & M Bank Limited v Gibson Omboya Shiraku) be marked as settled.

(v) Each party to bear its costs.

4. From the record, there is nothing to indicate a response by the applicant.

5. The two (2) applications were canvassed by way of written submissions.

6. I have considered the two (2) applications; the facts deponed in the respective affidavits supporting and opposing them; and the competing written submissions and authorities relied upon.

7. In brief, a background of the matter is that the respondent (“the deceased”) filed a suit against the appellant before the trial court and sought general damages for negligence, breach of contract and defamatory words published. The suit was defended by the appellant.

8. Upon hearing the parties, the trial court delivered judgment on 22nd November, 2019 in favour of the deceased against the appellant, thereby awarding the deceased the sum of Kshs.500,000/ general damages, plus costs of the suit and interest on the same.

9. The aforementioned judgment triggered the present appeal.

10. Subsequently, the deceased died on 23rd January, 2020 and the applicant obtained a limited grant of letters of administration ad litem on 11th November, 2020.

11. Having set out the brief background, I will begin with the second application seeking inter alia, an order of abatement of the cause of action and consequent settlement of the appeal.

12. In his supporting affidavit, Andrew Muchina states that on 24th February, 2020 the court gave directions that no action ought to be taken against the appellant since the respondent is deceased and that in any event, since the suit arises out of the tort of defamation, the cause of action cannot survive the deceased.

13. In its submissions, the appellant makes reference to the proviso of Section 2 (1) of the Law Reform Actthat:

“Subject to the provisions of this section, on the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate:

Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.”

14. The appellant further cites inter alia, the case of Kiage Peter Wa Mochama & another v Standard Chartered Bank Limited [2016] eKLRby the Court of Appeal, where it acknowledged that a claim for defamation does not survive a deceased person for the reason that it constitutes a personal claim and cannot therefore be allocated to the personal representatives of the estate of the deceased.

15. In reply, the applicant states that the suit instituted by the deceased was founded on three (3) separate causes of action and that it is only the cause of action of defamation which would not survive the deceased, hence the orders sought in the second application cannot fully be granted.

16. Upon my perusal of the pleadings filed before the trial court and annexed to the second application, I note that the deceased filed suit under the causes of action of negligence, breach of contract and defamation.

17. It is not in dispute that the suit was concluded by way of the judgment delivered on 22nd November, 2019 where the trial court found the appellant negligent and awarded damages for defamation. It is equally not in dispute that the deceased’s death came thereafter on 23rd January, 2020 by which time the appeal had already been filed against the said judgment.

18. From my reading and understanding of the authorities cited by the appellant, it is well-settled that defamatory claims being claims of a personal action, do not survive a deceased person.

19. However, it is noteworthy that the present circumstances are unique, in the sense that judgment had already been entered and a decree extracted prior to the death of the deceased. In my view therefore, the decretal sum would constitute part of the estate of the deceased and would therefore be pursued by the legal representatives of the estate of the deceased.

20. In so finding, I associate myself with the following reasoning taken by the court in the case of Joseph G. Njoka & 5 others v Rose Mutitu Gachoki [2018] eKLRcited by the appellant:

“The position, however, is different where a suit for defamation has resulted in a decree in favour of the plaintiff because in such a case the cause of action has merged in the decree and the decretal debt forms part of his estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff- respondent which his legal representative is entitled to uphold and defend and is therefore entitled to be substituted in place of the deceased respondent – plaintiff.”

21. Moreover, it is clear that the suit was not restricted to defamation but was founded on other separate causes of action which by law would survive the death of the deceased.

22. For all the foregoing reasons, I am not inclined to grant the orders sought in the second application and I hereby dismiss it with no order on costs.

23. I am now left with the first application essentially seeking an order for substitution. I have already established that the requisite grant was issued in favour of the applicant.

24. Upon my perusal of the record, I have not come across anything to show that the grant ad litem has been challenged or otherwise set aside. On that basis, I am convinced that there is no reason for me to decline to substitute the name of the deceased respondent with that of the applicant.

25. The upshot is that the Motion dated 13th November, 2020 is allowed as prayed and the following orders are made consequently:

a) The name of Gibson Ombonya Shiraku (“the deceased”) shall be substituted with the name of Roda Omboyi Ndula, the administrator ad litem of the estate of the deceased, as the respondent for purposes of the appeal.

b) Costs of the application to abide the outcome of the appeal.

c) As earlier indicated, the Notice of Motion dated 16th December, 2020 is dismissed with no order on costs.

Dated, Signed and Delivered at Nairobi this 24th day of March, 2021.

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

A. MBOGHOLI MSAGHA

JUDGE

In the presence of:

Ms. Leah Muhia for the Appellant

........................ for the Respondent

Mr. Ombete for the Applicant