[2022] KEHC 17198 (KLR)

Muriungi (Trading as CM Steel Erectors and General Building Contractors) v Gachongo & 2 others (Civil Case 88 of 2006) [2022] KEHC 17198 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 17198 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Case 88 of 2006

SM Githinji, J

May 19, 2022

Between

Charles Muriungi (Trading as CM Steel Erectors And General Building Contractors)

Applicant

and

Mercy Wanjiru Gachongo

1st Respondent

Pisgah Limited

2nd Respondent

Engineer Ezio Dubim

3rd Respondent

Ruling

1. By a Notice of Motion dated August 25, 2021, premised on section 1A, 1B and 3A of the Civil Procedure Act; Order 24 Rule 4 and Order 51 of the Civil Procedure Rules, counsel for the applicant sought the following orders:

1. That the honourable court be pleased to cause Stella Karimi Muriungiand Martin Kailemia Muriungithe legal representatives of the deceased Charles Muriungi Thariangaof Malindi who died on the March 28, 2020, during the pendency of this case to be joined as the administrators of the estate of the deceased and to continue with the case and execution proceedings with leave to file pleadings suitable to the new status.

2. That any other order which the court may deem fit to grant.

3. That cost of this application be provided for. 2. The application is grounded on the facts that the plaintiff/applicant, Charles Muriungi died on March 28, 2020 long after this suit had been concluded and a decree issued. To the applicants, the decree forms part of the deceased’s estate.

3. In response, the respondents filed a notice of preliminary objection dated September 23, 2021 on two points:1. That the plaintiff/applicants’ entire application is fatally defective, null and void ab initio and the same ought to be dismissed with costs in that the plaintiff/applicants have no authority or mandate to carry on this suit on behalf of the said plaintiff and as such this honourable court has no jurisdiction to entertain the instant suit.

2. That the suit is barred by Order 24 Rule 3 [2] of the Civil Procedure Rules 2010 Cap 21 Laws of Kenya.

4. On March 10, 2022 when the application came up for hearing, the counsel for the respondent was absent. Counsel for the applicants submitted that the said administrators of the plaintiff’s estate [Stella Karimi Muriungi and Martin Kailemia Muriungi] wish to be substituted to proceed with execution of the decree. He argued that the Notice of Preliminary Objection was not on a clear point of law.

Issues for Determination1. Whether the notice of preliminary objection is merited.

2. Whether this court should substitute the plaintiff [deceased] with the two persons given in the application. 5. What constitutes a preliminary objection was determined in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 where the court explained as follows:“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”

6. The first point of objection is on locus standi, which jurisprudence has established is a pure point of law that touches on the jurisdiction of the court. (See The Supreme Court in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others[2015] eKLR).

7. To the respondents, the applicants herein have no authority to carry on this suit on behalf of the deceased Plaintiff. This argument in my view is absurd because the application itself seeks to substitute the plaintiff, now deceased, with his legal representatives. The law allows such substitution under Order 24 Rule 3{1} which provides as follows:“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.”

8. The second point of objection is that the suit is barred by Order 24 Rule 3[2] of the Civil Procedure Rules. That rule provides:“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.”

9. This objection in my view does not amount to a pure point of law. I say so because to determine whether the suit has abated, if at all, certain facts have to be ascertained. In the circumstances, I do not find merit in the raised notice of preliminary objection.

10. On whether there is need for substitution of the plaintiff at this stage, I am guided by Order 24 Rule 10 of the Civil Procedure Rules, which provides:“Nothing in rules 3, 4 and 7 shall apply to proceedings in execution of a decree or order.”

11. Rules 3, and 4 provide for the procedure in cases of the death of the plaintiff[s] and or defendant[s]. That in such circumstances, the respective legal representatives are to make an application for substitution within 12 months, failure to which a suit abates. Rule 7 provides for the effect of abatement of suit.“Procedure in case of death of one of several defendants or of sole defendant [Order 24, rule 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.Effect of abatement or dismissal [Order 24, rule 7. ]

i.Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.ii.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.

12. It is clear from rule 10 above, that the suit cannot abate at the execution stage where a party to the suit is deceased. A further reading of the Rules, Order 31 is instructive in this case. It provides:“In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit, but the court may, if it thinks fit, order them or any of them to be made parties.”

13. In the case of Agnes Wanjiku Wang’ondu v Uchumi SupermarketLtd[2008] eKLR, the court in its analysis of the provisions of Order 24 and Order 31 above held that the requirement for substitution does not apply to proceedings in execution of an order; that while Order 30 Rule 1 [now Order 31 rule 1] states that it shall not ordinarily be necessary to make the legal representatives parties to a suit, it does not say that they cannot be made parties to a suit. This means that in appropriate circumstances, the personal representative can and should be allowed to join a suit.

14. The court in Mueni Kiamba v Mbithi Kimeu Kimolo [2017] eKLR held as follows:“I find there is wisdom in the above provision in that matters that have reached execution stage should be allowed to proceed without the need for substitution of deceased parties. This goes a long way in ensuring the overriding objective of the Civil Procedure Act and Rules namely the timely and expeditious determination of disputes between parties.”

15. Given the above, the evidence on record that the said Stella Karimi Muriungi and Martin Kailemia Muriungi are the legally appointed representatives of the deceased as per the grant of letters of administration dated July 15, 2021; and the fact that the Notice of Motion was not substantially opposed, I find no reason as to why the orders sought by the applicants should not be granted.

16. The upshot is that the Notice of Motion dated August 25, 2021 is allowed. Costs be in the cause.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 19TH DAY OF MAY, 2022. ...................................S.M. GITHINJIJUDGEIn the presence of; -1. Mr Stephen Kibunja for the Applicant2. Mr Gicharu Kimani for the Respondent.Malindi HCCC No.88 of 2006– Ruling Page 3 of 8