[2022] KEHC 14723 (KLR)

Ndambo v Ndambo (Civil Appeal 35A of 2022) [2022] KEHC 14723 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14723 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 35A of 2022

GMA Dulu, J

November 3, 2022

Between

Nzuve Ndambo

Appellant

and

Josiah Muli Ndambo

Respondent

(Being an Appeal from the ruling of Hon. J.O Magori (SPM) in Makindu Senior Principal Magistrate’s Court Civil Case No.156 of 2015, delivered on 30th March 2021)

Judgment

1. This appeal arises from a ruling delivered on 30th March 2021 by the magistrate’s court at Makindu in Makindu SPM CC No. 156 of 2015 involving the appellant as plaintiff/applicant and Josiah Ndambo Muli (deceased) as defendant/respondent.

2. In the said ruling of the magistrate’s court, the appellant’s application by way of Notice of Motion dated 20th November 2018 was dismissed by the magistrate’s court, with the magistrate concluding as follows –“Considering the above and the provisions of Order 24 Rule 4(1) and (3) the plaintiff/applicant’s application lacks merits. The plaintiff/applicant ought to have filed an application for substitution within one year from the date of death of the defendant/respondent but failed to do so. The defendant passed away in 2016 and the application was filed in 2018 about two years later. It is now about four years since the defendant/respondent passed on. The application doesnot comply with the provisions of Order (24) (3). The application is therefore dismissed and suit marked as abated.”

3. Thereafter, the appellant filed a Bill of Costs for taxation claiming an amount of Kshs.10,839,170/= but by a letter dated 10th February 2022 signed by Hon. B.N Ireri Senior Principal Magistrate, he was informed that no costs can be recovered herein as the defendant died and the suit abated.

4. Dissatisfied with the decision of the magistrates court, the appellant filed an application in this court for leave to appeal out of time as a pauper and such leave to appeal was granted.

5. The appellant has thus come to this court through a Memorandum of Appeal filed on 12th April 2022, on the following grounds –1. The learned magistrate erred in law in ruling that the appellant/applicant’s application had abated due to delay in substituting the personal representatives of the respondent.2. The learned magistrate did not consider the fact that the appellant herein is a layman and in the said application the appellant is acting in person and therefore not aware of Order 24 Rule (3) of the Civil Procedure Rules.3. That the delay in filing/substituting the personal representatives of the respondent occurred due to the fact that the appellant being a pauper had no money to engage a lawyer.4. That the advocate who was initially on record on behalf of the appellant did not legally advise the appellant as per Order 24 Rule 4 of Civil (Procedure Rules).5. That the appellant cannot be blamed for the delay and shall seek extension of the period stated in Order 24 Rule 4(3) of Civil Procedure (Rules).6. That the appellant herein appeals to this honourable court to set aside the ruling dated 30th March 2021 and allow the appellant’s appeal together with costs.

6. When this matter came up for hearing as ordered by this court through another file Miscellaneous Civil Application No. E070 of 2022, the appellant made oral submissions maintaining that the named respondent being dead the magistrate court should have decided in his favour, and also should have awarded him costs.

7. This is an appeal from a ruling delivered by the magistrates court in which the court stated that, as the request for substitution of the respondent by his children had been sought more than one year after his death, such substitution cannot be granted and the subordinate court matter was marked as abated.

8. I note that Order 24 Rule (4) of the Civil Procedure Rules, on which the learned magistrate relied in determining the application, states as follows –4(1) Where one or two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants, 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 cause, 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.

9. Indeed, under the above rule, there is no provision for extension of time after a suit against a deceased defendant abates. In the case of abatement of suit on death of a plaintiff under Order 24 Rule 3 however, there is a provisal to abatement of suit, in the following terms –“Provided that the court may, for good reason on application, extend the time”.

10. In my view, though the Rules do not contain a provisal for extension of time where the defendant dies and the suit abates after the lapse of one year, Order 50 Rule 6 of the Civil Procedure Rules should have guided the magistrate in this case. The said order provides as follows –50(6) Where a limited has been fixed for doing any act or taking any proceedings under the Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”

11. In my view, the magistrate was in error in dismissing the application solely on the ground of abatement due to lapse of time of the suit against the defendant due to death, and should have allowed the appellant to enjoin the sons or personal representatives of the deceased defendant as parties in the proceedings to enable administering substantive justice in this matter. The orders of the magistrate shutting out the appellant on a technicality do not satisfy the requirements of Article 159(2)(d) of the Constitution..

12. Consequently, I allow the appeal, set aside the ruling of the magistrate, extend the time for abatement of suit, and order as follows –a.The time for filing the application for substitution of the deceased defendant is extended to a current dateb.The appellant is allowed to substitute the names of Ndambo Muli (son), Muema Muli, Malinda Muli and Mwelu Muli, who are personal representatives/beneficiaries of the deceased’s estate as defendants in the case. They are so substituted Makindu SPMCC 156 of 2015 by this court.c.The magistrate’s court in Makindu SPMCC No. 156 of 2015 will thus issue summons to the above substituted parties to participate in the magistrates’ court proceedings.d.Costs of the application and appeal are in the cause.e.The subordinate court file be returned forthwith to Makindu.

DELIVERED, SIGNED & DATED THIS 3RD DAY OF NOVEMBER, 2022, IN OPEN COURT AT MAKUENI.............................GEORGE DULUJUDGE