[2017] KEHC 2809 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NYERI

CIVIL CASE NO. 14 OF 2014

SAMUEL KIRUBI NJUKIA ...................................... PLAINTIFF/APPLICANT

-VERSUS-

MARGARET WANGARI MACHARIA ……… DEFENDANT/RESPONDENT

RULING

1. Vide the notice of motion dated 10th February, 2015 and filed on the same date, the plaintiff/applicant herein seeks to replace the Defendant/respondent herein with a representative of her estate. In the event that no personal representative is appointed to substitute the deceased, the plaintiff prays that the defendant/respondent be substituted with the public trustee.

2. The application is premised on the grounds that the defendant/respondent passed on during the pendency of the suit; that the survivors of the deceased have failed and/or neglected to appoint a personal representative to the estate of the deceased thus making it difficult for him to go on with the suit as the defendant/respondent.

3. In view of the foregoing, the plaintiff/applicant contends that it is in the interest of justice that the orders sought be granted to enable prosecution of his suit.

4. The application is supported by the affidavit of the plaintiff/applicant, Samuel Kirubi Njukia, in which the grounds on the face of the application are reiterated. Besides reiterating the grounds on the face of the application, the plaintiff/applicant has deponed that the defendant/respondent died some- time in the year 2014.

5. The application is unopposed.

Analysis and determination

6. As pointed out herein above, the plaintiff/applicant seeks to substitute the defendant/respondent with her personal representative to enable him proceed with his case against the defendant who passed on during the pendency of the suit.

7. Although the application is unopposed, I note that the plaintiff/applicant has not adduced evidence of the exact time when the defendant/respondent passed on.

8. By dint of the provisions of Order 24 Rule 1 as read with Rule 3 of the Civil Procedure Rules, an application for substitution of a deceased defendant has to be made within one year of the death of the party sought to be substituted failing which the suit by operation of law automatically abates. In this regard see the said provisions of the law which provides as follows:

“24(1) Where one or two or more defendants die and the cause of action does not survive or continue against the surviving defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on 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) …

(3) where within one year no application is made under sub rule (1), the suit shall abate as against the deceased defendant.”

9. Whilst the applicant seeks to substitute the defendant/respondent who died in 2014 with his personal representatives, it is noteworthy that the plaintiff/respondent has not provided any evidence of the exact time as to when the defendant/ respondent passed on.

10. Without any evidence as to when the defendant/respondent died, it is not possible to determine whether or not by the time the current application was filed the suit had by operation of the law abated.

11. Since abatement of a suit under the above provisions of the law takes place by operation of law upon lapse of the time stipulated in law, it behooved the plaintiff/applicant to supply evidence of not only the death of the defendant/respondent but also the time as to when the defendant/respondent passed on. In this regard see the case of M’Mboroki M’arangacha Vs Land Adjudication Officer Nyambene & 2 others [2005] eKLR,where it was held: -

“… 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.” (Emphasis supplied).

In this case before me, no substitution was made within one year of the death of the Plaintiff. 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 law is the law. The court’s duty is to interpret the law as it was promulgated by parliament. The court does not make the law, except in those very few circumstances where the written law is not clear or is absurd and the court has to find or establish the intention of the legislature….”

12. In view of the foregoing, and in the absence of any evidence capable of assisting the court make a determination as to whether the suit in respect of which substitution is sought existed as at the time the application for substitution was filed, I decline to grant the orders sought.

Dated, signed and delivered in open court at Nyeri this5thday of October,2017.

L. N. WAITHAKA

JUDGE

In the presence of:

Mr. King’ori h/b for M/S Linda from the firm of Sichangi & Co. Advocates for applicant

N/A for the respondents

Court assistant - Esther