[2018] KEHC 6539 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI MILINMANI LAW COURTS

JUDICIAL REVIEW DIVISION MISC. APPLICATION NO. 371 OF 2006

IN THE MATTER OF THE AN APPLICATION FOR JUDICIAL REVIEW FOR ORDERS OF MANDAMUS AND CERTIORARI

AND

IN THE MATTER OF REGISTERED LAND ACT (CAP 300 (REPEALED) LAWS OF KENYA AND IN THE MATTER OF RECTIFICATION OF THE LAND REGISTER BY ORDERS OF THE COURT

AND

IN THE MATTER OF THE DECISION OF THE LAND REGISTRAR, KIAMBU LANDS OFFICE IN THE IMPLEMENTATION OF MUTATION, AWARDING LAND AND FIXING BOUNDARY OVER L.R. NOS. GITHUNGURI/GITHIGA/2494 & 2495 DATED 2ND MARCH 2006

REPUBLIC

VERSUS

THE LAND REGISTRAR, KIAMBU LAND'S OFFICE........................................RESPONDENT

EX PARTE: MWANIKI GIKUNGA AND

JANE NYAMBURA MUIRURI.............................................................1ST INTERESTED PARTY

PETER WAWERU WAIGANJO...........................................................2ND INTERESTED PARTY

BERNARD CHEGE...............................................................................3RD INTERESTED PARTY

RULING

Introduction

1. Before me for determination is an application by the first Interested Party Jane Nyambura Muiruri filed on 4th December 2017. The application is expressed under the provisions of Sections 1A, 1B & 3A of the Civil Procedure Act,[1]Order 24 Rule 3 (2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The applicant seeks an order that this Court extends time within which to substitute the ex parte applicant herein Mwaniki Gikunga-deceased with a one Stanley Kinyanjui Mwaniki, the Respondent in this Application.

2. The application is premised on the grounds that:- the deceased died intestate on 20th February 2011; that one year within which he should have been substituted has since lapsed; and, that the said Stanley Kinyanjui Mwaniki has since been appointed the administrator of the deceased's estate. Other grounds are that that efforts to resolve the dispute have been frustrated by the said administrator, Mr. Stanley Kinyanjui Mwaniki. The applicant also states that the substitution is required to enable her to tax her costs as ordered by this court, and that it is the interests of justice that the substitution be allowed. Further, she states that the Respondent and the Interested Parties will not suffer any prejudice if the orders are granted.

3. In support of the application is the applicant's Affidavit sworn on 1stSeptember 2017. She avers the deceased died on 20th February 2011; that this suit was dismissed on 23rd March 2012 for want of prosecution; and, that Stanley Kinyanjui Mwaniki signed a memorandum of understanding agreeing to resolve the dispute and to pay the costs.

4. The application is opposed. On record is the Replying Affidavit of Stanley Kinyajui Mwaniki sworn on 9th March 2018. He avers that:- this application is time barred since the one year time limit stipulated in Order 24 Rule 3 (2) of the Civil Procedure Rules has since lapsed; that this matter was dismissed on 23rd March 2012; that the delay in inexcusable, and in any event, the claim ought to have been brought to the attention of the estate of the deceased so as to be reflected as a liability while distributing the estate.

5. In his submissions, the applicant's council adopted the grounds stated in the application and the supporting affidavit. He argued that this Court has the discretion to grant the orders sought; and that it was not until 18th September 2013 when the grant of letters of administration was obtained, hence, there is no way the application could have been filed earlier. He also argued that there were attempts to compromise the matter as evidenced by the memorandum of understanding referred to above.

6. The Respondent's Counsel adopted his client's Replying affidavit and argued that the applicant is a neighbor to the Respondent, hence, she was aware the grant had been issued, and that six years have since lapsed since the deceased's death, and that the orders sought are discretionary and can be allowed if there is no inordinate delay or where the delay is excusable and has been explained.

7. The short title to Order 24 Rule 3 of the Civil Procedure Rules, 2010 reads; "Procedure in case of death of one of several plaintiffs’ or of sole plaintiff" :-

3. (1)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.

(2)Where within one year no application is made under sub-rule (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.

8. The above rule has been interpreted in many cases by our Courts. In Kenya Farmers Co-operative Union Limited vs Charles Murgor (Deceased) t/a Kaptabei Coffee Estate[2]the application for substitution of the deceased defendant was filed more than two years after his death. The Court stated: -

“Therefore, as a matter of law, the suit (had) abated. When substitution was subsequently purportedly made on 5th March, 1998, there was no suit subsisting in which substitution could be made. It had abated..... one year since the death of the Defendant. The order for substitution was thus made in error. It was unlawful and ought not have been entered.”

9. In M’Mboroki M’arangacha vs Land Adjudication Officer Nyambene & 2 others,[3] it was stated:-

“But it is clear that such an application seeking that a legal representative be made party in the place of the deceased Plaintiff, must be made within one year. In default of bringing the said application as I understand the rule, the surviving suit shall abate so far as the deceased Plaintiff is concerned. The language used by the legislature is mandatory as the words used are “the suit shall abate.” It is my understanding and view therefore the abatement of the suit is automatic and does not... need an order of the court to abate the suit.”

10. In Titus Kiragu vs Jackson Mugo Mathai & another[4] no substitution was made within one year of the death of the Plaintiff. The Court stated:-

"The suit by operation of a statute was mandatorily to abate on expiration of one year after the death of the plaintiff Jackson Mugo Mathai. That abatement mandatorily took place on or about 24th March, 2009 a year after his death. It took place automatically as a matter of law and because the law say so. It did not require a declaratory order by court to abate. And every day thereafter until the appellant herein filed the application dated 14th October, 2010, the suit did not exist because it had abated. The fact of filing the application dated 5th February, 2009 for substitution by the Respondent was in the right direction and had it been prosecuted and substitution made before 24th March, 2009, the suit could have been saved. However the act of filing the application without more, was not enough and could not fulfill or satisfy the requirement of Order XXIII Rule 4(2) aforestated."

11. The deceased in this case died on 20th February 2011. One year after his death lapsed on 20th February 2012. By dint of the above provision, this suit abated on 20th February 2012. The application under consideration was filed on 4th December 2017, almost six years after the deceased's death, and after the suit had abated.

12. More significant is the fact that despite the legal reality that this suit had abated as at the time of filing the application under consideration, the applicant did no deem it fit to include a prayer seeking to revive the suit. Instead she seeks to substitute the Respondent into a non-existence suit.

13. Order 24Rule 7 of the Civil Procedure Rules, 2010, entitled "Effect of abatement or dismissal." provides that :-

7(1)Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

7(2) 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.

14. It cannot escape the attention of this Court that the applicant seeks the substitution so as to enforce an order of Costs awarded by the Court while dismissing this suit. The said order was made on 23rd March 2012, one year after the deceased's death. By the time the order was made, this suit had already abated. Since the suit had already abated, and the said orders were made without an order reviving the suit, it follows that there was no suit pending as at the time the order awarding Costs was made. Hence, the order was made improperly.

15. It cannot be lost to this court that despite having a conscience, it is a court of law and not of mercy.[5] It is also bound by the law and more so the applicable rules of procedure and the relevant statutory provisions and precedents. It follows that by the time the suit was dismissed for want of prosecution, there was no suit to be dismissed in the first place. The parties were served with a notice to show cause why the suit should not be dismissed for want of prosecution. None of the parties appeared before the Court to show cause and in the absence of the parties, the suit was dismissed.

16. But more disturbing is the fact that the court order is clear. The suit was dismissed in the absence of the parties on 23rd March 2012 "with no orders as to costs."Contrary to the clear Court order as reflected by the record, the orders extracted and exhibited in this application reads "that this matter be and is hereby dismissed with costs for want of prosecution under theCourts inherent jurisdiction." Clearly, the order extracted does not conform to the Court record.

17. Several fatal inconsistencies are evident in this case. First, the Court order is clear, this suit was dismissed with no orders as to costs. Second, as at the date the suit was dismissed, this suit had already abated, hence, there was no suit to dismiss. Third, the application before me seeks to substitute a party to a non-existent suit.

18. Consequently, the conclusion becomes irresistible that the application dated 1st December 2017 is fit for dismissal. Accordingly I dismiss it. Since the Respondent did not bother to raise the above pertinent issues, I find that they do not merit costs. In particular, the Respondent did not draw to the courts attention that the suit was dismissed with no orders as to costs and that the suit had actually abated by the time it was 'dismissed.'

Orders accordingly. Right of appeal.

Signed, Dated and Delivered at Nairobi this 4thday ofJune2018

John M. Mativo

Judge

[1] Cap 21, Laws of Kenya.

[2] {2005} e KLR HCCC (Nrb.) No. 1671 of 1994.

[3] {2005} eKLR

[4] {2013} eKLR

[5] Yusuf Gitau Abdalla vs. The Building Centre (K) Ltd & 4 Others, Petition 23 of 2014