[2021] KEELC 283 (KLR)
The application for revival and substitution was incompetent because the applicants failed to seek an extension of time for revival of the suit as required under Order 24 of the Civil Procedure Rules. The court found that, although the applicants cited the Covid-19 pandemic as a reason for delay, there was no...
Source-derived case information.
- Citation
- [2021] KEELC 283 (KLR)
- Parties
- Plaintiff: Stephen Mwamba; Defendant: Kennon Mwiti Mbae (Sued as the legal representative of the estate of Silas Judah Mbae); Defendant: Zaverio Kiambi Mwamba; Applicant: Consolata Kanungo Mwamba; Applicant: Gregory Kimathi Mwamba
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Originating Summons 21 of 2019
- Procedural Posture
- Originating Summons / Ruling on Application for Revival and Substitution of Parties
- Outcome
- application dismissed
- Legal Topics
- Adverse Possession, Revival of Suit, Substitution of Parties, Order 24 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Mwamba
Plaintiff
Kennon Mwiti Mbae (Sued as the legal representative of the estate of Silas Judah Mbae)
Defendant
Zaverio Kiambi Mwamba
Defendant
Consolata Kanungo Mwamba
Applicant
Gregory Kimathi Mwamba
Applicant
Procedural Posture
Originating Summons / Ruling on Application for Revival and Substitution of Parties
Legal Issues
- 1 Whether the suit can be revived after abatement due to the death of the plaintiff.
- 2 Whether the applicants can be substituted as parties in place of the deceased plaintiff without a prayer for extension of time.
- 3 Whether sufficient cause has been shown for the delay in seeking substitution.
Ratio Decidendi
The application for revival and substitution was incompetent because the applicants failed to seek an extension of time for revival of the suit as required under Order 24 of the Civil Procedure Rules. The court found that, although the applicants cited the Covid-19 pandemic as a reason for delay, there was no explanation for the failure to act in 2019, and the application lacked a specific prayer for extension of time. The court held that, in the absence of such a prayer, it could not exercise discretion to revive the suit or substitute the parties. The sequence and requirements of Order 24 must be strictly followed, and without compliance, the application could not succeed.
Court Disposition
application dismissed
Orders
- The application for revival and substitution is dismissed with costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ORIGINATING SUMMONS NO.21 OF 2019
STEPHEN MWAMBA ............................................................. PLAINTIFF (Deceased)
VERSUS
KENNON MWITI MBAE (Sued as the legal representative of the estate of
SILAS JUDAH MBAE (Deceased) ....................................................1ST DEFENDANT
ZAVERIO KIAMBI MWAMBA ..................................................... 2ND DEFENDANT
AND
CONSOLATA KANUNGO MWAMBA &
GREGORY KIMATHI MWAMBA.....APPLICANT/LEGAL REPRESENTATIVES
RULING
1. By an application dated 7. 7.2020 the applicant seeks to have the suit revived and the applicants to be made parties in place of the plaintiff who passed on 18. 5.2019.
2. The application is based on the grounds on its face and the supporting affidavit sworn on 7. 7.2020.
3. The reasons given are that the plaintiff brought the originating summons dated 18. 4.2019 seeking for the orders of adverse possession over L.R No. Kiirua/Naari/5257, 5258, 5259, 5260, 5261 and 5262.
4. It is averred the aforesaid plaintiff passed on 18. 5.2019 after which the intended parties sought and obtained letters of administration ad litem on18. 6.2020. Under Order 24 rule 3 (1), when a party has passed on and a cause of action survives, an application to substitute has to be made within a year otherwise the suit abates.
5. Since the deceased passed on on 18. 5.2019 an application to substitute had to be made before 18. 5.2020. The death certificate was issued on 16. 7.2019 but the application for grant was only lodged on 11. 3.2020 which was less than two months before the suit abated. The reason given is Covid19. The pandemic was only declared on or about 15. 3.2020 and courts operations scaled down in April 2020. There is therefore no explanation given why the applicants did not file the application for the letters of grant and substitution in 2019.
6. Order 24 rule 3 (2) provides that the court may for good reasons and on an application extend the time for the revival and or joinder of parties. A party under Order 24 rule 7 (2) must show sufficient cause which is reasonable and plausible so as to persuade the court to believe that the explanation given is not only true but justifies the exercise of judicial discretion in favour of the applicant.
7. In RebeccaMijide Mungole & Another vKenya Power& Lighting Company Ltd & 2 others [2017]eKLRthe Court of Appeal outlined the sequence of events where the legal representative of the deceased is not joined within a year.
8. The court went on to say that it was only after time had been extended that a legal representative can have the capacity to apply to be made a party. The court held 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. Consequently without the time being extended, application for the revival or joinder of a party cannot be made at all.
9. In instant application there is no prayer for the extension or enlargement of time to apply for the revival and joinder of parties. Whereas an omnibus application can be made the applicant herein have only sought for two and not three prayers.
10. My finding therefore is the application is incompetent to seek for the revival or joinder when the prayer for more time to apply has not been sought and obtained.
11. The same is dismissed with costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 15TH DAY OF DECEMBER, 2021
In presence of:
No appearance for parties
Court Assistant - Kanau
HON. C.K. NZILI
ELC JUDGE