https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12642

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG'A** **CIVIL APPEAL NO. E051 OF 2021** **MARGARET WAMAITHA MUKABI AND ANN FAITH NDUTA MUKABI (suing as Legal representatives of STEPHEN KIRUTHI MUKABI – Deceased) ................................................... APPELLANTS** **VERSUS** **CHRISTINE MUTHONI MUIRU .................................RESPONDENT** **(***Being an Appeal from the Ruling of Hon. E.M Nyagah (SPM)delivered on 7th September 2021 in Muranga CMCC No. 385 of 2009)* **JUDGMENT** 1. The appeal herein arises from the decision of the trial court delivered on 7th September, 2021 in which the court found that the Appellant’s suit had abated and consequently dismissed it, in lieu of delivering the judgment which was then due. 2. Being aggrieved by the decision, the Appellants proffered this appeal. Through the Amended Memorandum of Appeal dated 9th December, 2022, the Appellants lists the following grounds: 3. *The learned magistrate erred in law and in his finding that there was no suit for which a trial could be concluded and judgement pronounced despite the fact that a trial had actually been conducted and concluded with submissions and a date for judgement scheduled.* 4. *The learned magistrate arrived at the wrong conclusion in law that the suit had abated because the application for substitution was given (sic) on 29.1.2019 yet the law as it stands is that the application for substitution is to be made within a year of death not the conclusion of the application which is always in the hands of the court.* 5. *That the learned Magistrate erred in law in his finding that because the injuries were personal therefore the cause of action did not survive the death of Stephen Kiruthi Mukabi.* 6. *The learned magistrate in reaching his conclusion in the said ruling totally disregarded the appellant’s submissions on the binding statutory provisions in Section 2 of the Law Reform Act to which he did not refer or comment.* 7. *The learned Magistrate’s ruling was unjust, unfair and illegal as it amounted to shutting the appellants from the legal process as known to the law and was contrary to natural justice and/or legitimate expectations.* 8. *The learned magistrate erred in his ruling as he totally failed to decide on the evidence adduced in the case thereby shirking his constitutional duty in resolving disputes between litigants.* 9. The Appellants seeks ordersas follows: *a). That this appeal be allowed and the ruling of the learned magistrate be set aside with a direction that the court writes and delivers a judgement on the whole case.* *b). Alternatively, this court directs that the judgement be written and delivered by a different magistrate.* *c). The appellants be granted the costs of the proceedings in the lower court.* *d). This court grants any further or other orders as the justice of the case may require.* 1. The appeal was heard and by way of written submissions. **Appellants’ Submissions** 1. It is the Appellant’s submission that the learned trial Magistrate misdirected himself by finding that the suit had abated. It is submitted that the court ignored the fact that a full trial had already been conducted, with submissions filed and a date for judgment scheduled. The Appellants contend that the court was bound by the mandatory provisions of Order 21 rule 1 of the Civil Procedure Rules, which stipulates that: *“In suits where a hearing is necessary, the court, after the case has been heard, shall pronounce judgment in open court, either at once or within sixty days from the conclusion of the trial notice of which shall be given to the parties or their advocates”.* 1. Regarding the issue of abatement, the Appellants submit that the learned Magistrate arrived at a wrong conclusion in law. They argue that while the original plaintiff, Stephen Kiruthi Mukabi, died on 22nd September 2017, the application for substitution was filed in court on 6th July 2018 well within the one-year period provided under Order 24 rule 3 of the civil procedure Rules. The Appellants maintain that the law only requires the application to be made within a year of death, not concluded within that time, as the conclusion of such applications is often subject to the court’s own calendar. 2. On the survival of the cause of action, the Appellants fault the trial court for totally disregarding the statutory provisions of Section 2 of the Law Reform Act, which provide that: *“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”.* 1. The Appellants argues that the Magistrate's finding, that personal injury claims do not survive the deceased was therefore a grave legal error. 2. Finally, the Appellants submit that by failing to write a judgment on the merits, the trial court abdicated its duty and caused a re-hearing of the case through the appeal process, which they argue is contrary to natural justice and legitimate expectations. **The Respondent’s Submissions** 1. The Respondent’s contends that the suit had abated by operation of law and that the trial court, therefore, lacked the jurisdiction to proceed to a final judgment on the merits. 2. The Respondent argued that since the deceased’s claim was based on personal injuries arising from a road traffic accident, the cause of action was personal to him and did not survive his death on 22nd September 2017. To support this, they relied on the case of **Loice Wanjiru Meru & 3 Others vs John Mugui (2017) eKLR** where the court observed: *“The test on whether a suit has abated or not depends on whether the suit is considered personal to the party... in suits that are personal to a party such as injuries, libels, slander and malicious prosecution, the suit abates on the death of this party”.* 1. The Respondent further submitted that by operation of Order 24 Rule 3(1) of the Civil Procedure Rules, the suit abated automatically upon the plaintiff’s death because the cause of action did not survive. In the alternative, they argued that even if the cause of action did survive, the suit abated one year after the death of the now deceased Plaintiff. 2. They contended that merely filing an application for substitution on 6th July 2018 was insufficient; the law requires the parties to be enjoined by a court order within the year. 3. The Respondent argued that an abated suit is a dead suit that cannot be resurrected without a specific prayer for revival, which the Appellants had failed to include in their application. They cited the Court of Appeal decision in **Rebecca Miside Mungole & Anothers vs Kenya Power & Lighting Company Ltd & 2 Others (2015) eKLR**, which stated: *“…Speaking generally by operation of the law, a suit will abate automatically when a sole plaintiff dies and the cause of action survives or continues if no application is made within one year following his death…”.* 1. The respondents further rely on *Wallace Kinuthia -Vs- Anthony Ndungu Muong'a & 3 Others,* where Justice P. Nyamweya held that a court has no jurisdiction to hear and determine a suit that has already abated. 2. In light of the above decisions, the Respondent maintained that the trial Magistrate was correct in his ruling of 7th September 2021 when he opined that there was no suit before him for which a judgment could be pronounced. **Analysis and Determination** 1. This being a first appeal, this court is duty-bound to re-evaluate the evidence and reach its own conclusions while making allowances for the trial court’s advantage in seeing the witnesses. 2. The only issues for determination in this Appeal is firstly whether the claim, forming the subject matter of the suit survived the demise of the deceased; secondly, whether the suit had abated; and finally, what appropriate orders should this court make. *Whether the claim survived the demise of the deceased* 1. Order 24 rule 1 of the Civil Procedure Rules provides that the death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives or continues. The starting point is therefore the nature of the cause of action and the applicable substantive law. 2. Section 2(1) of the Law Reform Act provides, in express terms, that on the death of any person all causes of action subsisting against or vested in him shall survive against, or for the benefit of, his estate. The proviso excludes causes of action for defamation, seduction, inducing one spouse to leave or remain apart from the other, and claims for damages on the ground of adultery. A claim in negligence for damages arising from bodily injuries is not among those statutory exceptions. 3. The Court of Appeal in ***Hintz v Mwakima [1984] KLR 294*** explained that a cause of action in negligence vests in the injured person when the injury occurs and constitutes a chose in action. Upon the injured person's death, section 2(1) of the Law Reform Act transmits that cause of action for the benefit of the estate. 4. The trial court therefore fell into error by treating every claim for personal injuries as a cause of action that necessarily dies with the injured person. The expression “personal injury” describes the harm for which compensation is sought; it does not, without more, place the claim outside section 2(1) of the Law Reform Act. 5. In this case, the deceased had instituted and prosecuted a negligence claim arising from the road traffic accident of 9th July 2009. His evidence had been recorded and the defence had closed its case without calling a witness. The claim was thus a subsisting chose in action vested in him at the time of his death. I consequently find that it survived for the benefit of his estate. 6. I have considered the decision in ***Loise Wanjiru Meru’s case*** (supra), where the court the Judge observed that personal injury claims are among those that do not survive the deceased. However, am not persuaded that a Judge’s opinion can override express provisions of the law. I have further noted that the decision was made by a court of equal status as the high court, and therefore is not binding on this court. *Whether the suit had abated* 1. Order 24 rule 3(1) requires the court, upon an application made in that behalf, to cause the legal representative of a deceased sole plaintiff to be made a party where the cause of action survives. Under rule 3(2), the suit abates where “within one year no application is made” under subrule (1), subject to the court's power to extend time for good reason. The operative word, in my view, is “ *if no Application is made within one year”* 2. The Court of Appeal ***in Said Sweilem Gheithan Saanum v Commissioner of Lands & 5 Others [2015] eKLR*** affirmed the above stated position when it explained that abatement occurs by operation of law, where no application for substitution is made within one year, or within such extended time as the court may allow. 3. The deceased died on 22nd September 2017. The application for substitution was filed on 6th July 2018, approximately two and a half months before expiry of the one-year period. It was therefore made within the time stipulated by Order 24 rule 3(2) of the civil procedure Rules. The factual foundation for automatic abatement was therefore absent. 4. The Respondent's submission that the order allowing substitution itself had to be made within one year is unfounded. Rule 3(2) of the civil procedure rules fixes the consequence of abatement to the absence of an application within one year. It does not require the court to hear and determine that application within the same period. I agree with the Appellant’s submission that once a proper application has been lodged timeously, the date allocated for its hearing, and the time taken by the court to determine it are matters outside the applicant's control. A party who has complied with the prescribed filing period cannot be prejudiced by the court's calendar. 5. The suit had not abated, and therefore there was no reason for an application for revival under Order 24 rule 7(2), nor for an application to extend time under the proviso to rule 3(2). 6. To conclude on this issue, the finding that the suit had abated was erroneous. The suit was live, and the trial court, having taken down the evidence ought to have proceeded to deliver judgment. *What appropriate orders should issue* 1. I have considered whether this Court should itself determine liability and quantum. The appeal before me challenges the ruling on abatement, and the trial court has not evaluated the evidence or made primary findings on those issues. The orderly and fair course is to restore the matter to the subordinate court for preparation and delivery of judgment. If the judicial officer who heard the suit is unavailable, a successor is empowered by Order 18 rule 8(1) to deal with the recorded evidence and proceed from the stage at which the predecessor left the matter. 2. For the foregoing reasons, the appeal has merit. It is hereby allowed, and the following are the orders hereby issue: a). The ruling of the Senior Principal Magistrate delivered on 7th September 2021 in Murang'a CMCC No. 385 of 2009 is hereby set aside. b). Murang'a CMCC No. 385 of 2009 is remitted to the Chief Magistrate's Court at Murang'a for writing of judgment on the evidence and submissions already on record. c). The judgment shall be prepared and delivered by the judicial officer who heard the suit or, if that officer is unavailable, by another magistrate, possessed of competent jurisdiction. d). The cost of this Appeal is awarded to the Appellant. Dated, signed and delivered at Isiolo, via *Microsoft Teams*, this 30th day of July 2026. S. Chirchir Judge. In the presence of: Roba Katelo- Court Assistant.