[2023] KEHC 26381 (KLR)

Mwai v Titus & 3 others (Civil Appeal 67 of 2019) [2023] KEHC 26381 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26381 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 67 of 2019

RM Mwongo, J

December 7, 2023

Between

Charles Gitari Mwai

Applicant

and

Secily Wawira Titus

1st Respondent

Bancy Njeri Muriuki

2nd Respondent

Alfred Ngai-Imwe

3rd Respondent

and

Beatrice Ndunguri Mwai (Deceased)

Appellant

Ruling

1. The applicant, Charles Gitari Mwai, filed a notice of motion dated 27th March, 2023 in which he essentially seeks that:a.the court do extend the time for substitution of the deceased 1st Appellant herein, Beatrice Ndunguri Mwai, with her legal representative, and thus do substitute the Applicant Charles Gitari Mwai in place of the 1st Appellant; Beatrice Ndunguri Mwai;b.the court be pleased to revive the Appeal by the 1st Appellant; Beatrice Ndunguri Mwai (deceased).

2. The application is based on the grounds that:a.Beatrice Ndunguri Mwai (deceased) the 1st Appellant herein died on 28/03/2021. b.the applicant is the legal representative of the estate of the Beatrice Ndunguri Mwai (deceased).c.the applicant wishes to substitute the deceased in this appeal for it to proceed to hearing and determination.d.the cause of action survived the deceased.

3. The applicant deposed a supporting affidavit with the following major averments:1. That Beatrice Ndunguri Mwai (Deceased) who was his mother was the 1st Appellant herein, and she died on 28/03/2021. 2.That at the time of her death, the deceased was acting in person and the appeal herein was pending determination.3. That since the year 2019 the deponent had been working in Namibia and was therefore not in a position to follow up on the progress of the appeal.4. That he was issued with the grant Ad-litem for the estate of the deceased on 20th January, 2023. 5.That he is desirous of continuing with the prosecution of the appeal in the place of the deceased after her substitution.6. That the appeal by the 1st appellant has abated and it is also his prayer that the Honourable court to revive the same.

4. The 3rd Respondent/ 2nd Appellant filed a replying affidavit with the following major averments:i.That the application by the applicant to be substituted was already time barred as it was made over one year after the demise of Sicily Wawira Titus.ii.That since no application had been made to substitute the 1st Respondent for over one year after her demise, then the appeal should have abated and allowing the substitution after the prescribed timelines would be unfair, unjust and prejudicial to the Appellant.iii.That the applicant made the application and undertook the substitution proceedings without serving the 3rd Respondent with the application and without any notice to him whatsoever of the proceedings.iv.That since he was not served as is required by law, then the resultant orders should be quashed and declared null and void.v.That since the application was time barred then it was defective ab initio.vi.That this honourable court does adopt the terms of the consent that had proposed by the parties to withdraw the appeal and distribute the suit land to the beneficiaries.

Applicant’s Submissions 5. The applicant submits that the application was necessitated by the demise of the 1st Appellant while the hearing and determination of the appeal herein is pending. The application was not opposed by any of the Respondents. The Replying affidavit of the 3rd Respondent sworn on 25th May, 2023 though purported to have been filed in response to the present application, paragraph 2 thereof indicates it is sworn in response to a motion dated 27th March, 2023.

Extension of time for substitution 6. On the first order sought, the Applicant seeks that the court do extend the time for substitution of the 1st appellant with her legal representative. Order 24 Rule 9 of the Civil rocedure Rules (2010) (hereinafter "the Rules") makes Order 24 of the Rules which deals with death and bankruptcy of parties, applicable to appeals.

7. Order 24 Rule 3(2) of the Rules provides that an application for the substitution of a deceased party should be made within one year from the date of their death. The proviso to Rule 3(2) above grants the court authority to extend the time for filing an application for substitution. The applicant deposes that he was working in Namibia since the year 2019 and upon his return to Kenya in January 2023 he sought legal advice on the appeal herein and was advised the application herein ought to be made which was promptly done. Thus, they submit that the delay to make the application was not deliberate and there was no inordinate delay before it was made.

Revive the appeal 8. The Applicant seeks that the court do revive the appeal herein so that he can proceed with its hearing and determination. Order 24 Rule 4(3) of the Rules provides that an appeal shall abate with respect to a party if their substitution is not made within one year of their death. The 1st Appellant's appeal has abated since the application for her substitution was not made within one year of her death.

9. Nevertheless, Order 24 Rule 7(2) of the Rules gives the court authority to revive an appeal that has abated on application by a party if it is proved that they were prevented by sufficient cause from continuing the appeal. The applicant had been working in Namibia since the year 2019 and until his return to Kenya in January 2023. The Applicant was thus prevented by sufficient cause from continuing with the appeal before it abated and it is in the interest of justice for the same to be revived.

10. The applicant relies on the case of Mathenge Ngatia Ngari -Vs-Christopher Wang'ombe Ngatia & Another (2020) eKLR where it was held that the court has the discretion to; grant an extension of time to make an application for substitution, grant orders of substitution and grant an order for the revival of an abated suit.

11. Finally, counsel argued that the Application herein does not prejudice any of the Respondents in any way.

Respondents’ Submissions 12. The 1st and 2nd Respondents did not file submissions as they are not opposing the application.

13. The 3rd Respondent relied on his Replying Affidavit dated 25th May 2023.

Issues for Determination 14. The issues for determination are as follows:1. Whether the extension of the time for substitution of the 1st Appellant herein should be allowed.2. Whether the appeal should be revived.

Analysis and Determination Whether Extension of time for substitution and substitution should be allowed 15. The Applicant seeks the Honourable court to extend the time for substitution of the 1st appellant with her legal representative.

16. The application was necessitated by the demise of the 1st Appellant on 28/03/2021. The hearing and determination of the appeal herein is pending.

17. Order 24 Rule 3(2) of the Civil Procedure Rules provides that an application for the substitution of a deceased party should be made within one year from the date of their death. The proviso to Rule 3(2) above grants the court authority to extend the time for filing an application for substitution.

18. The applicant deposes that he was working in Namibia since the year 2019 and upon his return to Kenya in January 2023 he sought legal advice on the appeal herein and was advised the application ought to be made which was promptly done.

19. In the following decision, the court allowed an application for extension of time for the applicant to pursue the suit involving the deceased’s estate.

20. In Patrick Wamugunda Gichira Njuki v Dancun Nyamu Muriuki [2015] eKLR,(ELC) the court stated the rationale for reviving a suit where the applicant shows that he was prevented “by any sufficient cause” from continuing the suit, and stated as follows:“Has the applicant proved that there is “good reason” to extend time or that he was prevented by “sufficient cause” from continuing the suit? The applicable standard of proof is, of course, on a balance of probabilities. The applicant only obtained the limited grant on 25th July 2014 and obviously he could not make this application without the grant. As for the delay in obtaining the limited grant, he says it was due to financial constraints. I think that is a good enough reason.”

21. In this case, there was no inordinate delay before the filing of the application for substitution, and the reason of the applicant’s working outside the jurisdiction is a good enough reason for the delay.

22. Moreover, the applicant was issued with the Ad-litem grant for the estate of the deceased on 20th January, 2023 and desirous to substitute the deceased appellant and to prosecute the appeal

Whether the appeal should be revived 23. Order 24 Rule 4(3) of the Rules provides that an appeal shall abate with respect to a party if their substitution is not made within one year of their death. The 1st Appellant's appeal has abated since the application for her substitution was not made within one year of her death.

24. Order 24 Rule 7(2) of the Rules gives the court authority to revive an appeal that has abated on application by a party if it is proved that they were prevented by sufficient cause from continuing the appeal.

25. The 3rd Respondent deposed that since no application had been made to substitute the 1st Respondent for over one year after her demise, then the appeal should be deemed to have abated, and allowing the substitution after the prescribed timelines would be unfair, unjust and prejudicial to the Appellant.

26. The applicant deposed that he had been working in Namibia since the year 2019 and until his return to Kenya in January 2023.

27. In the case of Mathenge Ngatia Ngari v Christopher Wang'ombe Ngatia & Another (2020) eKLR it was held that the court has the discretion to grant an extension of time to make an application for substitution, grant orders of substitution and grant an order for the revival of an abated suit.

28. Thus, it is clear that the applicant was prevented by circumstances beyond his control in seeking substitution; and this amounts to “sufficient cause”, which can be remedied by an order for revival.

Disposition 29. Flowing from the foregoing discussion, I conclude as follows.

30. In respect of the issue whether extension of time for substitution of the deceased 1st Appellant should be granted, the answer is, yes. Accordingly, extension of time is hereby granted by forty-five (45) days.

31. In respect of the issue as to whether the appeal should be revived, the answer is also, yes. The appeal is hereby revived, and the appellant shall move the court within 45 days as aforesaid.

32. Costs will abide the appeal

33. Orders accordingly

DELIVERED AT KERUGOYA THIS 7TH DAY OF DECEMBER, 2023. ___________________R. MWONGOJUDGEIn the presence of:Ngigi, for the 1st RespondentAlfred Ngai Imwe 3rd Respondent