[2023] KEELC 21134 (KLR)

Nkirote v Land Registrar Meru County & 12 others; Mworia (Applicant) (Environment & Land Case E017 of 2021) [2023] KEELC 21134 (KLR) (30 October 2023) (Ruling)

Neutral citation: [2023] KEELC 21134 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment & Land Case E017 of 2021

CK Nzili, J

October 30, 2023

Between

Celina Nkirote

Plaintiff

and

The Land Registrar Meru County

1st Defendant

The Attorney General

2nd Defendant

The Land Adjudication and Settlement Office

3rd Defendant

Meru County Surveyor

4th Defendant

Gideon Mugambi Mworia

5th Defendant

M’Mboroki Ndura

6th Defendant

Julius Kimathi Mungania

7th Defendant

Afusa Grace Suleiman

8th Defendant

Yunus Adam Muthamia

9th Defendant

Joseph Hunyu Thirikwa

10th Defendant

Priscilla Mwari

11th Defendant

Mercy Kanyiri

12th Defendant

Michael Mwirigi Maitima

13th Defendant

and

Muriuki Kijana Mworia

Applicant

Ruling

1. By an application dated 24. 1.2023, Muiruki Kijana Mworia, the legal representative of the estate of Gedion Mugambi Mworia, seeks to replace the 4th defendant said to have died on 3. 1.2022 and whose cause of action survived his death. The applicant avers that since he has obtained a limited grant of letters of administration ad litem in Meru Chief Magistrates Court Misc. Succession Cause No. E083 of 2022 on 27. 5.2022, the court should allow him to join the suit. The applicant has attached copies of the death certificate issued on 14. 1.2022 and the grant of his affidavit sworn on 24. 1.2023 as annexures marked GMM 1 & 2, respectively.

2. Order 24 Rule 4 Civil Procedure Rules set out the procedure to be followed in case of death of a defendant, where a cause of action survives. The plaintiff is the one to move the court to make a legal representative of the deceased person a party to the suit. Order 24 Rule (4) (3) Civil Procedure Rules provide that if the application for substitution is not made within a year, the suit shall abate as against the deceased defendant.

3. In this suit, the death certificate shows that the 4th defendant passed on 3. 1.2022. So, one year expired on 3. 1.2023. The suit against the 4th defendant, therefore, abated by operation of the law, on 3. 1.2023. Order 24 Rule 7 (2) of the Civil Procedure Rules provides that the plaintiff may apply to revive an abated suit for sufficient reasons. In Hon. Attorney General vs. Law Society of Kenya & another Civil Appeal (Application No. 133 of 2011, the court said sufficient reasons must be plausible, rational, logical, reasonable, and truthful.

4. In this application, the intended 4th defendant is the one who has moved the court and not the plaintiff. He has not explained the reason for the delay. The plaintiff has not been zealous to revive the abated suit. Without an application for the revival of the abated suit, there is no basis why the court should allow the intended applicant to substitute the deceased when the cause of action has abated against the 4th defendant by effluxion of time.

5. Order 24 Rule 4 of the Civil Procedure Rules is the only instance where a legal representative to a deceased defendant can move the court. The intended legal representative of the deceased defendant must also move the court within a year; otherwise, the suit shall abate. Even though the grant was issued on 27. 5.2022, the intended applicant waited until 24. 1.2023 to file his application. This was after the suit against the estate had abated by operation of the law on 3. 1.2023. No leave has been sought to revive the suit already abated to extend the time to substitute, and an explanation for the delay has been offered. See John Muthee Matumo vs Thomas Gerishon and 4 others (2022) eKLR.

6. A party seeking substitution after the suit has abated without a prayer for revival by giving sufficient cause would be acting in vain. See Rukwaro vs Kanyutho Ritho Nyeri ELC No. 548 of 2014 and Joseph Gachuhi Muthanji vs Mary Wambui Njuguna C.A No. 34 of 2014.

7. Joinder of the personal representative is not the same as the revival of an abated suit. The revival has to precede the joinder. In Rebecca Mijinde Mungole & another vs Kenya Power and Lighting Company Limited & 2 others (2017) eKLR, the Court of Appeal held that the sequence of the application under this procedure requires that an application be made for the extension of time to apply for joinder, after which the legal representative can have the capacity to apply to be made a party. The court said that Order 24 of the Civil Procedure Rules must be construed by reading it as a whole, and the sequence in which it is framed must be followed without short-circuiting it. See also William Muinde Kilundo vs Peter K Wambua & 3 others (2018) eKLR.

8. The upshot is that I find the application incompetent and lacking merits. It is due to this dismissed with no order as to costs.

Orders accordingly.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 30TH DAY OF OCTOBER 2023. HON. CK NZILIELC JUDGE