[2022] KEHC 15449 (KLR)

Muema v Madison Insurance Company Ltd (Civil Suit 389 of 2009) [2022] KEHC 15449 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15449 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Suit 389 of 2009

GV Odunga, J

October 18, 2022

Between

James M. Muema

Plaintiff

and

Madison Insurance Company Ltd

Defendant

Ruling

1. Before this court is a Notice of Motion dated June 10, 2021 and expressed to be brought under Section 1A, 3A, 63 (e), 95 and 100 of the Civil Procedure Act and Order 8 Rule 3, Order 34 Rule 1,3 and 4, Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules seeking the orders that;i.This Honourable Court be pleased to grant leave to the Defendant/ Counter- claimant to substitute the deceased Plaintiff James M Muema with the Legal Administrators of his estate being Messrs Mary Kalondu Muiya, Andrew Mwema Muiyaand Peter Kyalo Jamesand the suit by way of Counterclaim against the Plaintiff(s) be revived.ii.Upon such substitution as proposed above, the Defence and Counter Claim herein be amended to reflect the fact of substitution.iii.Costs of the Application be in the cause.

2. The Application is supported by the Affidavit of Charles Gathu, the Legal officer of the Applicant sworn on June 10, 2021 in which he contends that the Plaintiff sued the Defendant for declaratory orders in respect of Motor Vehicle Insurance policy involving the Plaintiff’s Motor Vehicle Registration number KAD 744Y which according to the Plaint was involved in an accident on August 29, 2009 along Machakos –Kangundo Road. As a result, more than thirty law suits for compensation in damages were instituted by the victims of the accident. He deposed that by defence and counter claim dated February 22, 2010, the Defendant sought declaratory orders to disclaim or avoid or repudiate the insurance policy or its applicant’s liability thereunder.

3. The deponent averred that Counsel for the Plaintiff informed the court on November 22, 2018 that his client had passed away on July 2, 2018 and on July 18, 2019 when no substitution had taken place, the court declared the Plaintiff’s suit abated. However as the cause of action in the counter claim survives the demise of the Plaintiff and as the deponent found out that on February 13, 2020 Messrs Mary Kalondu Muiya, Andrew Mwema Muiya and Peter Kyalo James were appointed the legal representatives of the deceased’s estate vide Machakos High Court Succession Number 5 of 2019, the Defendant is still desirous of prosecuting the counter claim with a view to obtaining certainty and a closure regarding the status of the subject motor insurance cover and liability, if any, to indemnify the insured under the subject insurance policy.

4. The deponent averred that it is only fair that the abated counterclaim be revived lest the Defendant condemned unheard to settle possible payment of millions of shillings in compensatory damages to the accident victims or decree holders. He contended that the application has been timely presented in the circumstances and that the abatement that occurred was not the fault of the Defendant and as Plaintiff’s Counsel had all along sought time to effect a substitution in vain. He also stated that since the Respondents are not interested in reviving their plaint, they will not suffer any prejudice if the counterclaim is determined on merit and in the public interest as it has the potential to affect more than thirty related claimants.

Replying Affidavit 5. In response, Mary Kalondu Muema filed a Replying Affidavit dated November 8, 2021 as one of the legal representatives of the estate of James M Muema, Deceased and stated that the application is fatally incompetent, vexatious, scandalous and an abuse of the court process. She contended that the supporting affidavit was deposed by a person with no authority to do so. Further that by operation of the law, the suit abated on July 2, 2019 a year after the date of death of the Plaintiff with no legal provision for revival. She contended that the Application discloses no cause of action as the Applicant has failed to seek leave to amend the Defence and Counterclaim as well as failed or neglected to attach a draft amended defence and counterclaim. The Applicant sought to have the application dismissed.

6. By a supplementary affidavit filed on February 9, 2022, the deponent to the supporting affidavit insisted that he had and still has legal authority of the Defendant company to depose to and swear his affidavits.

7. The application was canvassed by way of written submissions.

Defendant/ Applicant’s Submissions 8. Vide submissions filed on February 9, 2022, the Applicant contended that the Plaintiff died on July 2, 2018 and that grant of letters of administration were made on February 13, 2020, more than one and a half years later by which time the counter claim had abated by operation of the law. It was submitted that it was not until May 2021 when he discovered this fact. While reiterating the contents of his affidavit, he submitted that the court had discretion to extend time for substitution of a deceased party and to revive an abated suit or counterclaim in the interest of justice once sufficient cause is shown. Reliance was placed on the case of Rebeca Mijide Mundoli & Another v Kenya Power & Lighting Company Limited & 2 others [2017] eKLR and James Mwaniki Kinuthia v Hemed Iddi Mukui & Another [2019] eKLR.

9. The Applicant contended that he stands to suffer irreparable prejudice by being condemned to compensate or indemnify the Plaintiff in respect of claims outside the terms of insurance Contract into a realm of no privity and this will be against the doctrines of freedom of contract and public interest.

Plaintiff/Respondent’s Submissions 10. The Respondent filed submissions on April 20, 2022 in which she contended that it is trite law that substitution of any party should be done within one year from the time the party dies. It was her contention that the application herein was filed out of time and should not be allowed as it will be against the provisions of the Limitation of Actions Act. To buttress this point, she relied on the case of John Mutai Mwangi & 26 others v Mwenja Ngure & 4 others, Civil Application No 126 of 2014. According to the Respondents, equity aids the vigilant and that it follows the law.

11. It was submitted that Section 29(4) of the Limitation of Action Act has no effect on substitution and the case of Rebecca Muide Mungole & Another v Kenya Power & Lighting Company Limited & 2 Others [2017] eKLR was cited for the position that it is necessary to apply for extension of time to apply for joinder of the deceased plaintiff’s legal representative where the legal representative is not joined within one year and that it is only thereafter that an application for revival may be done. The court was urged to dismiss the application as the Defendant has not applied for extension of time first.

Determination 12. I have considered the Application, the Responses thereto and the submission of parties.

13. It is common ground that the Plaintiff, James M. Muema, died on July 2, 2018 and on July 18, 2019, the Plaintiff’s suit was marked as abated. It is also not in dispute that the Grant of letters of administration was issued on February 13, 2020 to Mary Kalondu Muiya, Andrew Mwema Muiya and Peter Kyalo James by which time the suit had already abated. However, the Defendant herein had made a counterclaim against the Plaintiff.

14. The first issue for determination is, what was the fate of the counterclaim upon the abatement of the suit? In my view, since the abatement of the suit has the same effect as the dismissal, upon the abatement of the Plaintiff’s suit, the Defendant who has the counterclaim becomes the plaintiff for the purposes of the Counterclaim since for all intents and purposes, a counterclaim is a separate suit from the main suit and is only filed in the same proceedings for the purposes of convenience. See Barclays Bank of Uganda Ltd v Lugobe [1973] EA 461.

15. That being the position, it would follow that the fate of the counterclaim upon the death of the Plaintiff would be similar to where the Defendant passes away. Since the Plaintiff was a sole Plaintiff, in the Counterclaim he was the sole Defendant hence the relevant legal provision is that which applies upon the death of a sole Defendant Accordingly, in my view the relevant provision is Order 24 rule 4 of the Civil Procedure Rules which provides that: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.

16. However, rule 7 of the said rule provides that:(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.

17. In this case the Applicant in this case seeks to substitute the name of the deceased with that of the administrators, to revive the Counterclaim and an order to amend the Defence and counterclaim so as to reflect this position.

18. In the case of Rebecca Mijide Mungole & Another v Kenya Power & Lighting Company Ltd & 2 others [2017] eKLR the Court of Appeal stated that;“The sequence of the application under this procedure of what should happen in case of the death of a plaintiff and the cause of action survives or continues, is plain. Speaking generally, by operation of the law, a suit will automatically abate where a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues if no application is made within one year following his death. Where a suit abates, no fresh suit can be brought on the same cause of 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 representative of the deceased plaintiff to be joined in the proceedings, it is imperative and we may add, logical, where the legal representative is not so joined within one year, that an application be made for extension of time to apply for joinder of the deceased plaintiff’s legal representative. It is only after the time has been extended that the legal representative can have capacity to apply to be made a party. 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. Again it is only after the legal representative has been joined as a party that he can apply for the revival of the action. In our view there is nothing objectionable to making an omnibus application for all the three prayers. But it is incompetent to seek joinder or revival when the prayer for more time to apply has not been granted.”

19. The procedure for revival was also outlined by the Court of Appeal in the case of Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 Others Civil Appeal No 16 of 2015 [2015] eKLR as follows;“There are three stages according to these provisions. As a general rule the death of a plaintiff does not cause the suit to abate if the cause of action survives. But within one year of the death of the plaintiff or within such time as the court may in its discretion for “good reason” determine, an application must be made for the legal representative of the deceased plaintiff to be made a party. The “good reason” therefore relates to application for extension of time to join the plaintiff’s legal representative to the suit. Secondly, if no such application is made within one year or within the time extended by leave of the court, the suit shall abate. Where a suit abates no fresh suit can be brought on the same cause of action. Thirdly, the legal representative of the deceased plaintiff may apply for the abated suit to be revived after satisfying the court he was prevented by “sufficient cause” from continuing with the suit. The effect of an abated suit is that it ceases to exist in the eye of the law. The abatement takes place on its own force by passage of time, a legal consequence which flows from the omission to take the necessary steps within one year to implead the legal representative of the deceased plaintiff.”

20. These cases, it must be noted were in respect to situations where the Plaintiff was the deceased and those applying were substitution were the legal representatives of the deceased Plaintiff. In that case the applicable provision is Order 24 rule 3 of the Civil Procedure Rules under which the proviso thereto provides that:Provided the court may, for good reason on application, extend the time.

21. f.In my view there are good reasons for providing stringent timelines in cases where the Plaintiff is dead and substitution is sought to be done by the plaintiff’s personal representative since it was within the power of the legal representatives of the deceased to have taken out letters within the one year window provided and to have substituted the deceased plaintiff. If they did not do so within that window, then they can only make such an application where time has been extended to them.

22. The position is however different where the Plaintiff wishes to substitute the dead defendant or where the Defendant with a counterclaim wishes to substitute the dead plaintiff in the main suit. In that case the surviving party has no control over the taking out of the grant and can only wait until the same is taken by the family of the deceased in which case such action may be taken after the one year window period. Since there is no proviso in rule 4 similar to the one in rule 3 it would mean that such a person would be forever locked out from agitating his claim where, as in this case, he had a counterclaim. That interpretation would clearly be unjustbecause the party may by then not be within time to lodge a fresh claim.

23. In my view the only just interpretation would be that where it is the Defendant/Counterclaimant seeking to substitute the dead Plaintiff, can only do so within a reasonable time from the date it came to his knowledge that the letters of administration in respect of the estate of the deceased party had been taken. What amounts to reasonable time depends on the circumstances of the case and in that case, the issue of extension of time does not arise and the above proviso to rule 3 does not apply.

24. In this case the Plaintiff passed away on July 2, 2018 and the Defendant found out on February 13, 2020 that Messrs Mary Kalondu Muiya, Andrew Mwema Muiya and Peter Kyalo James were appointed the legal representatives of the deceased’s estate vide Machakos High Court Succession Number 5 of 2019. The instant application dated June 10, 2021 was filed on June 14, 2021. Whereas the period was rather long, I have not heard the Respond et complain that due to the delay in making the application they have been prejudiced. I am satisfied that the Defendant was prevented by the failure by the beneficiaries of the estate of the deceased to take out letters of administration in good time from continuing with the suit. I agree with the position adopted by the Court of Appeal as regards what constitutes “sufficient cause” in The Hon Attorney General v the Law Society of Kenya & Another Civil Appeal (Application) No 133 of 2011 where it was held that:“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 Blacks 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 Judges mind. The explanation should not leave unexplained gaps in the sequence of events.”

25. In my view considering the circumstances of this case and as there is a plausible reason for the delay in continuing with the suit, it is in the interest of justice that the applicant be granted a chance to amend and argue its counterclaim on merits even if it is only on a matter of principle.

26. To that extent, I agree with the decision in the case of Geoffrey Mwangi Kihara v Mwihoko Housing Company Ltd & 3 others [2015] eKLR where the court observed as follows;“In the instant application, the Plaintiff averred that he filed a succession cause to compel the deceased 2nd Defendants wife to take letters of administration ad litem to represent the deceased in the suit, after it became apparent that the 2nd Defendants family was not keen on taking out letters of administration. This, in my view, is good reason to revive the suit against the 2nd Defendant, and also to extend time for the Plaintiff to make his application for substitution, noting that it was indeed the delay by the deceased’s family to take out letters of administration that caused the suit herein to abate as against the 2nd Defendant.” 27. Prejudice if any occasioned to the Respondents can, no doubt be compensated in costs. It has been said there is one panacea which heals every sore in litigation and that is costs. Seldom, if ever, do you come across an instance where a party has made a mistake which has put the other side to such disadvantage or that it cannot be cured by the application of that healing medicine. See Waljee’s (Uganda) Ltd v Ramji Punjabhai Bugerere Tea Estates Ltd [1971] EA 188.

28. Accordingly, I find the application dated June 10, 2021 merited. Leave is hereby granted to the Defendant/ Counter- claimant to substitute the deceased Plaintiff James M Muema with the Legal Administrators of his estate being Messrs Mary Kalondu Muiya, Andrew Mwema Muiya and Peter Kyalo James and the suit by way of Counterclaim against the Plaintiff(s) be revived. Let the Defence and Counter Claim herein be amended to reflect the fact of substitution within 14 days from the date of this ruling.

29. The costs of this application are however awarded to the Respondents.

30. It is so ordered.

G V ODUNGAJUDGERULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 18TH DAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of: