[2022] KEHC 14324 (KLR)

In re Estate of Flora Michere Mburuga (Deceased) (Civil Appeal 13 of 2017) [2022] KEHC 14324 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14324 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 13 of 2017

RM Mwongo, J

October 18, 2022

IN THE MATTER OF THE ESTATE OF FLORA MICHERE MBURUGA (DECEASED)

Between

Milka Wanjiru Njogu

Appellant

and

Sarafina Muthoni Gichira

Respondent

and

Joel Kithaka Njogu

Applicant

Zippora Wakuthii Njogu

Applicant

Ruling

1. There are two applications for consideration before this court.

2. The first application is dated October 4, 2021 and was filed on October 7, 2021. It seeks:a)that the applicants be granted extension of time to apply for substitution andb)that the applicants (Joel Kithaka Njogu and Zippora Wakuthii Njogu) be enjoined in the appeal in place of the appellant who is deceased.

3. The second application is dated October 12, 2020 and was filed on June 8, 2021. It seeks orders that the appeal in Wang’uru PM Succ No 30 of 2016 has abated, and that the file be taken back to the trial court for execution. The applicant is Sarafina Muthoni Gichira, the respondent to the appeal.

4. Although the second application - for abatement - was filed first, it is logical that the first application for extension of time to pre-empt abatement be heard first, for if successful, the issue of abatement will also thereby be determined.

5. The background is that the lower court in a ruling dated March 14, 2017 determined that the protestor, Milka Wanjiru Njogu (now deceased) who was the daughter in law to the Deceased Flora Micere Mburuga, was not a dependent within the meaning of Section 29 of the LSA. Accordingly, not being a daughter or personal representative of the deceased, she had no say in how the estate of the deceased should be distributed. her protest was thereby dismissed.

The Application for extension of time 6. The application is made pursuant to Order 24 Rules 3 (2) of the Civil Procedure Rules. it is based on the grounds that:1. The appeal involves a land matter hence the need for it to proceed to finality for determination on merit.2. The appeal is arguable if only granted a second chance.

7. The applicants argue that misfortune befell both of them hence the delay to move the honorable court within the stipulated time was not occasioned by their own fault but rather was beyond their control.

8. In addition to the grounds, the 1st applicant has deposed to a 13 paragraphs supporting affidavit, of which the following are the major averments: -1. That the appellant herein Milka Wanjiru Njogu is my mother who is now deceased.2. That my mother died on August 30, 2019. 3.That I have been all along a resident of Malindi within Kilifi County working for gain with Hemingways Watamu Limited at their hotel situated within Watamu Township.4. That as I struggled to come in terms with the demise of my mother and in the month of March 2020, as I had planned to travel from Malindi to Kirinyaga County to at least take up responsibility of the present suit, the Government announced a lockdown at Kilifi County which completely paralyzed my planed travel to Kirinyaga County.5. That the situation grew worse when on April 30, 2020, I received a termination letter from my employer due to what was termed as low turn of business due to global corona virus pandemic.6. That I had lost contact with my advocate until sometimes in 2021 when I obtained ad litem orders on February 3, 2021 and later learnt about the respondent’s application dated October 12, 2020, seeking a declaration that the appeal has since abated.7. The delay to substitute my late mother was not occasioned by my fault but by circumstances beyond my control.

9. The 2nd applicant has deposed to a 9 paragraphs supporting affidavit, of which the following are the major averments: -1. That I have obtained letters of administration in the estate of the deceased appellant.2. That the delay to substitute the late appellant occasioned by the effect of covid- 19 pandemic that locked me in Nairobi and hampered my movement.3. That I pray the Honourable court to be pleased enough to revive the appeal and enlarge time for us to substitute our late mother, the appellant, in this appeal.4. That no party will be prejudiced if the appeal is allowed to proceed to finality.

10. Both applicants seek that the court allows the appeal to be revived.

11. The respondent filed grounds of opposition dated October 27, 2021 stating that the application lacks merit and should be dismissed with costs for the reasons that: Every litigation should come to an end; and no good, convincing and reasonable reasons have been offered for the delay in obtaining a limited grant and filing an application for substitution. The applicants were woken up from their deep slumber by the application dated October 12, 2020.

12. The applicants submit that the 2nd Applicant contracted Covid-19 and hence delayed in substituting the deceased appellant. They submit that they have made "good reason" in relation to their application for extension of time to be enjoined as the Appellants legal representative to the suit and they have expounded clearly that the delay to act swiftly was not accessioned by their fault but rather by circumstances which was beyond their control.

13. In particular, they submit that when the Covid -19 pandemic was announced in Kenya in March 2020, the time to act in the matter had not elapsed and they could have complied within the timeline if it were not for the calamities that befell them like losing his job.

14. The applicants submit that we have since obtained letters of Administration in regard to the estate of the deceased Appellant Milka Wanjiru Njogu. the Zipporah Njogu, second applicant, exhibited the grant ad litem dated February 4, 2021. They thus and urge the court to allow their application.

15. Finally, they submit that the orders for stay of execution of the subordinate court in this Appeal were granted on August 8, 2019 by which time the appeal had not been admitted and therefore the Appellant could not have filed records of appeal in any case, and neither could we have filed the records of appeal without having been substituted in place of the deceased appellant.

16. The applicants cited the case of Rebecca Mijide Mungole & Anor v Kenya Power & Lighting Company Ltd & 2 Others [2017] eKLR Thika ELC No 661, where the Court of Appeal approved a holding that:“Where a suit abates, no fresh suit can be brought on the same cause action because It is extinguished and cannot be maintained in the form it was originally presented. Because the suit will only abate where, within one year of the death of the plaintiff no application Is made to cause the legal of representative of the deceased plaintiff to be joined in the proceeding time can be extended.”

17. The respondent submits that the proceedings herein relate to the estate of the late Flora Michere Mburuga who died on June 23, 2002, and was registered as the owner of land parcel number Kabare/Nyangati/2857 measuring about 7. 5 acres. The said deceased had 3 children namely Wangeci Muriithi Muciri, Sarafina Muthoni Gichira and Fausto Njogu Mburuga, now deceased and husband to the appellant, Milka Wanjiru Njogu. Unfortunately, the appellant has also since passed on.

18. In Wang’uru principal Magistrate’s Court Succession Cause No 30 of 2016, the court directed that the said land parcel number Kabare/Nyangati/2857 be shared equally by the three children, each getting a portion of 21/2 acres.

19. The respondent further states that the protestor therein who is the appellant, now deceased, was dissatisfied with that distribution as her proposal was that she gets 5 acres, and her two sisters in law each to get one acre. She filed this appeal. Later she filed an application dated July 28, 2018 seeking for orders of stay of execution pending appeal, and which orders were issued on February 8, 2019 with a condition that the appellant pays to court Kshs 50,000/= as security for costs.

20. According the respondent, on August 30, 2019 or thereabouts, the appellant died. No action was taken to have her substituted. This prompted the Respondent to file the application dated October 12, 2020 to declare the appeal as having abated, so that the lower court file can be forwarded to Wang’uru Principal Magistrates court for execution purposes. Since obtaining the orders for stay, up to now no record of appeal has ever been prepared in accordance with the law.

21. The only inference for the delay is that the appellant and intended substitutes decided to enjoy the orders of stay, and which action is prejudicial to the Respondent and her sister. The intended substitutes argue that the appeal involves land and that the distribution was quite fair and in accordance with the law.

22. The respondent submits that the application dated October 12, 2020 has merit and urges the court to allow it. Further, she seeks that the court dismiss the application dated October 4, 2021 for lack of merit.

Issues for determination 23. The core issue for determination is whether the applicants have demonstrated sufficient reasons to be granted extension of time to apply for substitution of the appellant.

Analysis and Determination Whether the appeal can be revived by extending time 24. The protestor/ appellant, now deceased, was dissatisfied with the mode of distribution of land parcel number Kabare/Nyangati/2857 as her proposal was that she gets 5 acres, and her two sisters in law each to get one acre. She filed this appeal.

25. She then filed an application dated July 28, 2018 seeking for orders of stay of execution pending appeal, which orders were issued on February 8, 2019 with a condition that the appellant pays to court Kshs 50,000/= as security for costs.

26. The appeal was later admitted for hearing on July 24, 2020.

27. On August 30, 2019 the appellant died. The applicants did not take any action to have her substituted. This prompted the Respondent to file the application dated October 12, 2020 to declare the appeal as having abated. They seek that the lower court file be forwarded to Wang’uru Principal Magistrates court for execution purposes.

28. The applicants blame the delay on covid 19 and the fact of the loss of employment for the delay in substituting the deceased appellant. The reason given by the intended substitutes is that Covid-19 pandemic prevented them from taking positive steps for substitution.

29. Order 24 Rules 3(1)(2) and 7 (2) of the Civil Procedure Rules, provide as follows:(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 an 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.(2)Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the 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 reason on application, extend the time.…………..7(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.

30. There is no doubt that in law, by dint of the fact that one year elapsed without any application being made within one year for the deceased’s legal representative to be made a party to the suit, the suit abated.

31. In Rebecca Mijide Mungole & Another v Kenya Power & Lighting Company Ltd & 2 others Civil Appeal No283 of 2015 [2017] eKLR the Court of Appeal emphasized the need to apply for extension of time as follows;“Order 24 must be construed by reading it as a whole and the sequence in which it is framed must be followed without short circuiting it. The proviso to rule 3(2) to the effect that the court may, for good reason on application, extend the time goes to show that without time being extended, no application for revival or joinder can be made. It is the effluxion of time that causes the suit to abate. It is that time that must, first be extended. Once time has been enlarged, only then can the legal representative bring an application to be joined in the proceedings.”

32. In the case of The Hon Attorney General v The Law Society of Kenya & Another – Civil Appeal (Application) No 133 of 2011 the Court of Appeal observed as follows as to the meaning of “sufficient cause”:“Sufficient cause or good cause in law means: -‘The burden placed on a litigant (usually by court rule or order) to show why a request should be granted or an action excused.’ See Black’s Law Dictionary, 9thEdition, page 251. Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubt in a Judge’s mind. The explanation should not leave unexplained gaps in the sequence of events.”

33. The court must thus carefully exercise its discretion when deciding whether the reasons given are “good” and “sufficient” to enable it to grant an extension, given that the extension is being sought in the light of an existing delay.

34. It is clear that, as pointed out by the respondents, when the appellant died in August, 2019, the Covid pandemic had not been identified anywhere in Kenya, leave alone anywhere in the world. Covid was for the first time announced in Kenya sometime in March, 2020, a period of over eight months from the date of death of the appellant. Further, court operations were still ongoing even after the said disease struck, except that the operations were downscaled.

35. Further, nothing has been availed to the court in terms of evidence to show that the applicants or either of them had lost a job, or how that affected them in pursuing the substitution. I do note that the 2nd applicant filed some medical papers to show that she had mild pneumonia associated with Covid 19 when examined on 4. 5.2020; and had blood sugar tests on June 14, 2021. this notwithstanding they were able to pursue a grant of letters of administration ad litem on February 4, 2021, hence the ailments do not really explain the failure to apply for substitution.

36. The applicants sought to rely on the holding by Oundo, J in Mathenge Ngatia Ngari (suing for himself and on behalf of his deceased brothers represented by their wives) v Christopher Wangombe Ngatia & another [2020] eKLR where the Judge held:“25. .Although the Applicant had not given any explanation for not filing the Application within the time stipulated, yet under the circumstance of the prevailing situation, I feel the need to invoke the provisions of Sections 1A and 1B of the Civil Procedure Act Cap 21 Laws of Kenya where the court is enjoined to foster and facilitate the overriding objective of the Act to render justice to parties in all Civil proceedings in a just, expeditious, proportionate and affordable cost to the parties. Article 159 (2) (a) (b) (c) and (d) of the Constitution further underscore the role of the court in the administration of Justice. Article 159 (2) (d) provides that justice shall be administered without undue regard to procedural technicalities.

26. These Constitution provisions mirrored against sections 1A and 1B of the Civil Procedure Act clearly enjoin the courts to endeavor to do substantive justice to the parties without necessarily being shackled by procedural technicalities.”

37. In my view, the provisions of the Constitution in Article 159 that pre-empt the defeat of merit and substantial justice by the technicalities of the rules of procedure were never intended to oust procedure. TheConstitution of Kenya 2010 is itself fairly laden with procedural technicalities in many aspects.

38. Order 24 Rules 3(1)(2) and 7 (2) of the Civil Procedure Rules merely requires a party who wishes to benefit from them to show that he did not go to sleep, that he was not only desirous of making substitution but was actively pursuing the same , but that he was prevented from achieving his clear intentions by a good and sufficient cause. That is all that is meant by that Rule. I also think that where, as in this case, the applicant was enjoying an order of stay by the court, the threshold to show good and sufficient cause is somewhat heightened, because the inference is easily made that such party went to sleep upon enjoying the court’s largesse, and such perception must be counterbalanced by the evidence of the effort made by the applicant.

39. All in all, I am unable to find a satisfactory, rational, plausible, logical, convincing, reasonable and truthful explanation that leaves no doubt or unexplained gaps in my mind for the applicants’ delay in effecting substitution for 25 months from the date of the appellant’s death on August 30, 2019 to October 7, 2021 when the applicants applied for extension of time to apply for substitution.

40. Accordingly, the application for extension and revival of the suit is declined and dismissed with no order as to costs.

41. Orders accordingly.

DATED AT KERUGOYA THIS 18TH DAY OF OCTOBER, 2022………………………………………R MWONGOJUDGE,KERUGOYA HIGH COURTKagio - for RespondentsJoel Kithaka - 1st ApplicantNo representation - Zipporah Njogu 2nd ApplicantCourt Assistant - Murage