[2019] KEELC 4228 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC NO. 175 OF 2009

KENYA ANTI-CORRUPTION COMMISSION.................................PLAINTIFF

VERSUS

PAUL LOBO...............................................................................1ST DEFENDANT

BERNARD ATATI....................................................................2ND DEFENDANT

SAMMY KOMEN MWAITA..................................................3RD DEFENDANT

RULING

1. The Application before me for determination is the Notice of Motion dated 17th October, 2018 by the 2nd Defendant seeking orders that the Suit against the 1st Defendant be declared to have abated and upon such declaration, the Suit against the 2nd Defendant should accordingly fail, and the Notice of Motion dated 17th October 2018 by Plaintiff seeking to revive the Suit against the 1st Defendant, Paul Lobo by substituting him with Sarah Maria Lobo and Myrtle Mary Desa, the Legal Representatives of the Estate of Paul Lobo.

2. The Plaintiff’s Application dated 17th October, 2018 is premised on the grounds on the face of the motion and supported by the affidavit of Fatuma Abdulrahim sworn on 17th October, 2018. It is deposed that on 9th June, 2009, the Plaintiff sued the Defendants over unlawful acquisition and alienation of land REFERENCE NUMBER MN/1/12408 being public property owned by Kenya Civil Aviation Authority. That on 18th September, 2018, the firm of Omulama E.M. & Company Advocates served the Plaintiff with copies of Grant of Probate of Written Will dated 17th April 2012, Death Certificate dated 20th June 2011 and extracts of newspaper cutting dated 24th November, 2010 which indicate that Paul Lobo, the 1st Defendant died on 22nd November 2010 in Nairobi. That pursuant to the said Grant of Probate of Written Will it is apparent that Sarah Maria Lobo and Myrtle Mary Desa are the Legal Representatives of the Estate of Paul Lobo (deceased).

3. It is deposed that the Plaintiff became aware of the death of Paul Lobo on 18th September 2018 and that prior to this knowledge of the Plaintiff was not in a reasonable position to make an Application for substitution of the deceased with the Legal Representatives of his Estate.

4. It is further deposed that the Plaintiff’s cause of action against the deceased has abated hence there is need to revive the Plaintiff’s Suit against the deceased through his substitution with the Legal Representatives of the Estate. It is the Plaintiff’s contention that it has an arguable case with high chances of success against the estate of the deceased and that it is in the best interest of justice and public interest to revive the Plaintiff’s Suit against the estate of the deceased through his Legal Representative of his Estate. That failure to revive the Plaintiff’s suit against the estate of the deceased through his Legal Representatives would adversely limit and prejudice the provisions of Section 11 (i) of the Ethics and Anti-corruption Act 2011 as read with Article 159 (2)(d)(e) and 40(6) of the Constitution of Kenya to the detriment of the Government of Kenya.

5. It is further deposed that the Defendants/Respondents would not be prejudiced if the Plaintiff’s Suit and the serious triable issues attendant therein are conclusively adjudicated on merit with the participation of the Legal Representatives of the Estate of the deceased. That there exist plausible reasons and circumstances that warrant revival of the Plaintiff’s Suit against the estate of the deceased through the Legal Representatives thereof and that unless the orders sought herein are granted, miscarriage of justice is bound to occur contrary to public interest. The deponent believes that under Article 159 of the Constitution and Sections 1A and 3A of the Civil Procedure Act, it would be fair, expedient and in the best interest of justice and public interest to revive the Plaintiff’s Suit as sought in the present Application.

6. The Application is opposed by the 3rd Defendant who filed a Replying Affidavit sworn by Sammy Silas Komen Mwaita, the 3rd Defendant on 25th January 2019. He has deposed that the Application is bad in law and brought in bad faith and an abuse of the process of the Court and the same ought to be dismissed with costs. The 3rd Defendant avers that the Suit stands abated and the Plaintiff did nothing from 22nd November, 2010 when the 1st Defendant died until 17th October 2018 when this Application was filed. That the 1st Defendant’s death was advertised on 24th November 2010 in the Daily Nation Newspaper which has a wide circulation and that the Grant of Probate of Written Will was issued on 12th April 2012 when the Suit had already abated. The 3rd Defendant states that there has been long and indeed inordinate and inexcusable delay out of which he stands to suffer prejudice contrary to fair hearing and quick/reasonable disposal of cases. The 3rd Defendant further states that the Application for substitution has no basis in law because the allegations against the deceased are in personam.

7. Mr. Makori, learned Counsel for the Plaintiff submitted that the cause of the action survives the 1st Defendant as it seeks to recover the land which is currently registered in the name of the 2nd Defendant. He submitted that the Plaintiff’s Suit against the 1st Defendant is in rem and not in personam and therefore should not be dismissed. He relied on the Order 24 Rule 4(2) of the Civil Procedure Rules.

8. Mr. Magut, learned Counsel for the 2nd Defendant submitted that under Order 24 of the Civil Procedure Rules, the Suit against the 1st Defendant abated after one year from the date of his death. He submitted that the Suit against the 1st Defendant was in personam and the estate cannot be blamed on behalf of the deceased since the 2nd Defendant bought the property from the 1st Defendant.

9. Mr. Rutto, learned Counsel for the 3rd Defendant associated himself with the submissions of Mr. Magut, adding that the Suit stands abated and that the Application is made in bad faith and violates the right to fair trial. That the death was advertised in the newspaper and the Plaintiff ought to have been vigilant. He submitted that under the Law Reform Act, where the Suit is in personam, that cause of action dies with the deceased, and cannot survive the estate.

10. I have carefully considered all the material availed to this Court in support of and against the Application. Order 24 of Civil Procedure Rules provides as follows: -

“1. The death of a Plaintiff or Defendant shall not cause the Suit to abate if the cause of action survives or continues.

2. Where there are more Plaintiffs or Defendants than one, and anyone of them dies, and where the cause of action survives or continues to the surviving Plaintiff or Plaintiffs alone or against the surviving Defendant or Defendants alone, the Court shall cause an entry to that effect to be made on the record, and the Suit shall proceed at the instance of the surviving Plaintiff or Plaintiffs, or against the surviving Defendant or Defendants.

4 (1) Where one of two or more Defendants dies and the cause of action does not survive or continue against the surviving Defendant or Defendants alone, or a sole Defendant or sole surviving Defendant 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 Defendant to be made a party and shall proceed with the Suit.

2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased Defendant.

3) Where within one year no Application is made under subrule (1), the Suit shall abate as against the deceased Defendant.

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7. (1) Where a Suit abates or is dismissed under this order, no fresh Suit shall be brought on the same cause of action.

(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.”

11. From the foregoing provisions, it is trite that the Court is given the discretion to extend time for substitution of parties and to revive a Suit that has abated if sufficient cause is shown. The Suit herein was instituted on 9th June 2009. From the Court record, it appears no action was taken in the matter until on 25th June 2017 when the Suit came up for notice to show cause why the same should not be dismissed pursuant to notice issued by the Court under the provisions of Order 17 Rule 2 of the Civil Procedure Rules. On 25th May, 2017, Mrs. Abdulrahim Counsel for the Plaintiff indicated that the Plaintiff was still keen to prosecute the case. Mr. Ajieko Advocate who held brief for Mr. Odoyo Counsel for the 1st and the 2nd Defendants and Ms. Wafula Advocate who held brief for Mr. Kadima, Counsel for the 3rd Defendant supported the dismissal. After consideration, the Court did not dismiss the Suit. Instead the matter was fixed on 11/7/2017 for hearing of the Application dated 2nd May 2017 by the firm of Kadima & Company Advocates seeking leave to withdraw from acting for the 3rd Defendant. That Application was allowed as already the firm of Osoro Omwoyo & Company Advocates had come on record for the 3rd Defendant vide a Notice of Change of Advocate dated 23rd April 2017 and filed on 23rd May 2017. The matter was fixed for pre-trial directions on 21/11/17 when Mrs. Abdulrahim appeared for the Plaintiff while Mr. Ajieko was present for the 3rd Defendant and held brief for Mr. Odoyo for the 1st and 2nd defendnats. Mr. Ajieko sought for more time to comply which was granted. The matter was later fixed for mention to confirm compliance on 5th February, 2018 when all the parties were represented. Mr. Ajieko held brief for Mr. Odoyo for the 1st and 2nd Defendants and for Mr. Otwere for the 3rd Defendant, while Mr. Bii was present holding brief for Ms. Fatuma Saad for the Plaintiff. The matter was fixed for hearing on 4th July 2018. Again, Mr. Ajieko was present for the 3rd Defendant and held brief for Mr. Odoyo for the 1st and 2nd defendants while Mrs. Abdulrahim was present for the Plaintiff. The case was adjourned following an Application by the defence who had not been served with all the witness statements. Mr. Odoyo was also said to be indisposed.

12. On 17th October, 2018, M/s Magut & Sang Associates Advocates who came on record for the 2nd defendant on 17th September 2018 filed the Application seeking orders to have the Suit against the 2nd Defendant to be declared to have abated. This is because the 1st Defendant had apparently died on 22nd November, 2010. The 2nd Defendant attached a notice advertised in the Daily Nation Newspaper on 24th November 2010. On the same date the Plaintiff filed the Application dated 17th October 2018 seeking to revive the Suit against the 1st Defendant by substituting Paul Lobo (deceased) with the Legal Representatives. On 18th September, 2018, M/s Omulama E.M. & Company Advocates for the 1st Defendant had filed the 1st Defendant’s list of documents which included Grant of Probate, Death Certificate, and Newspaper cutting.

13. The Application to revive the Suit and seeking the substitution of the deceased was made on 17th October 2018, about seven years after the abatement of the Suit against the 1st Defendant and on the same day the 2nd Defendant applied to have the Suit declared as having abated. As stated earlier, the Advocate for the 1st Defendant filed list of documents on behalf of the 1st Defendant on 18th September, 2018. Prior to that, the parties and in particular their Advocates, including that of the 1st Defendant had intimated to the Court that they were ready to proceed with the hearing of the case. There was no indication that the 1st Defendant had died way back in the year 2010. The Plaintiff has stated that it became aware of the 1st Defendant’s death on 18th September 2018 when they were served with the 1st Defendant’s list of documents dated 18th, 2018. The Plaintiff contends that the Application is merited because it was not aware of the 1st Defendant’s death before 18th September, 2018. It is further contended that it is in the best interest of justice and public interest to revive the Suit against the estate of the 1st Defendant through his Legal Representatives.

14. There is no dispute that he 1st Defendant died on 22nd November, 2010. The Suit against the 1st Defendant was alive until his demise on 22nd November, 2010. An Application to substitute the 1st Defendant should have been made within one year of the deceased’s death and it was that failure to apply to substitute the deceased Defendant within the stipulated one year that the Suit against him abated, necessitating this Application.

15. This Court notes from the record that the parties, including the Advocates for the 1st Defendant were acting as though the 1st Defendant had not passed on. The impression the Court gets is that none of the parties were aware of the death of the 1st Defendant until 18th September, 2018 when Counsel for the 1st Defendant filed the 1st Defendant’s list of documents. From the foregoing, it is clear that the Plaintiff may not have been alive to the demise of the 1st Defendant prior to 18th September, 2018.

16. From the foregoing, I am of the most considered opinion that the Plaintiff has shown sufficient cause or reason why no Application for substitution was made within one year of the demise of the deceased Defendant. In addition, the Plaintiff has also shown sufficient cause or reason which prevented it from applying for revival of the Suit after its abatement on 22nd November, 2011, having had no knowledge of the deceased’s demise before the Suit abated. I therefore exercise my discretion in favour of the Plaintiff.

17. The upshot of this is that I find that the Application by the Plaintiff dated 7th October, 2018 is merited. The same is allowed as prayed.

18. As regards the 2nd Defendant’s Application dated 17th October, 2018, in my view the same fails as it was dependent on the outcome of the Plaintiff’s Application. On the argument that the Suit against the Defendants is inpersonam and not in rem, it is my view that it would be inappropriate at this stage to delve into the merits of the Suit. Such issues can best be determined upon hearing on merit. The merits of the Suit, in my view, cannot be determined through submissions.

19. For the foregoing reasons, I decline to grant the orders sought in the 2nd Defendant’s Application dated 17th October, 2018.

On costs, I order that each party bear their own costs of both Applications.

DATED, SIGNED and DELIVERED at MOMBASA this 18th day of March 2019.

C.K. YANO

JUDGE

IN THE PRESENCE OF:

Mrs. Abdukrahim for Plaintiff

Magut for 2nd Defendant holding brief for 3rd Defendant

No appearance for 1st Defendant.

Yumna Court Assistantl

C.K. YANO

JUDGE