https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10744

Sufi & another v Dzilala & another (Suing as Legal Administrators of the Estate of Hussein Nurdin Swalehe) (Civil Appeal E193 of 2024) [2026] KEHC 10744 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10744 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E193 of 2024 EO Bitta, J July 16, 2026 Between Mohamed Sufi 1st Appellant Shaban Bakari 2nd Appellant and Nurdin Swalehe Dzilala 1st Respondent Mohamed Abdi Hassan 2nd Respondent Suing as Legal Administrators of the Estate of Hussein Nurdin Swalehe Judgment 1.This is an appeal arising from the ruling of the learned Principal Magistrate, Hon. G. Sogomo, delivered in Mombasa CMCC No. E377 of 2013, whereby the trial court allowed prayers (a) and (b) of the Respondent's Notice of Motion dated 8th November 2021. 2.The Respondent had sought orders that the suit be revived, the Plaintiff in the suit being deceased, and that his legal representatives, Nurdin Swalehe Dzilala and Mohamed Abdi Hassan, be made parties in his place and proceed with the suit and that the Plaint be amended accordingly to include the said legal representatives as parties. 3.The suit in the lower court was commenced by way of a plaint dated 30th May 2012, in which the deceased plaintiff, one Husein Nurdin Swalehe, instituted proceedings against the Appellants seeking general damages, damages for loss of earning capacity, special damages, costs of the suit and interest thereon arising out of a road traffic accident. 4.The Mr. Husein (later decesead) pleaded that on or about 18th March 2011, he was lawfully travelling as a passenger aboard motor vehicle registration number KBM 300U/ZC 1744 along the Voi–Mombasa Road at Taru when the Appellants, through their authorised driver, servant and/or agent, so negligently and recklessly drove, managed and controlled the motor vehicle that it rolled, thereby occasioning serious injuries to him. 5.The Appellants, who were the defendants before the trial court, denied the claim through a statement of defence dated 19th May 2014. 6.The record reflects that at some point the plaintiff passed on and after the time prescribed by law, the suit abated. 7.After the passage of several years, the Respondents herein obtained letters of administration ad litem and filed an application before the trial court seeking for the abated suit to be revived and for them to be substituted in place of the deceased plaintiff. 8.That application was opposed by the appellant vide a replying affidavit sworn to by one Kishore Nanji. 9.The trial court, upon hearing both parties, held in favour of the Respondent and granted the Respondent the orders sought. 10.The appellants, being aggrieved by the ruling of the trial court, preferred the present appeal: The appeal is predicated on grounds inter alia:a.The trial court erred in failing to appreciate the significance of the various facts and documents referred to in the replying affidavit of Kishore Nanji.b.The trial court failed to properly consider the substantive submissions made on behalf of the Appellants.c.The trial court failed to make any, or any proper, findings on the evidence contained in the replying affidavit of Kishore Nanji.d.The trial court failed to give proper reasons for ruling in favour of the Respondents.e.The trial court erred in failing to appreciate that the application before the court was governed by Order 24 Rule 3 of the Civil Procedure Rules, 2010, rather than Order 50 Rule 6 thereof.f.The trial court erred in law and in fact by allowing the Respondents' application when no extension of time had been sought or obtained for the joinder of the deceased plaintiff's legal representatives.g.The trial court erred in law and in fact in failing to appreciate that the Respondents had not demonstrated sufficient cause to warrant the revival of the suit after it had abated. 11.The Appellants pray that the appeal be allowed with costs, the ruling of the trial court be set aside, the Respondent's Notice of Motion dated 8th November 2021 be dismissed with costs, and the suit itself be dismissed with costs. 12.The Appeal proceeded by way of written submissions with both parties filing rival submissions which are summarised as follows: 13.The Appellants relied on the celebrated decision of Mbogo & Another v Shah (1968) EA 93, for the settled principle that an appellate court should not interfere with the exercise of judicial discretion unless it is shown that the trial court misdirected itself in law or fact, arrived at a wrong decision, or that its exercise of discretion resulted in injustice. 14.The Appellants submitted that the applicable procedural framework where a sole plaintiff dies is found under Order 24 Rule 3 of the Civil Procedure Rules. 15.The Appellants cited the Court of Appeal decision in Said Sweilem Gheithan Saanum v Commissioner of Lands (Being sued through the Attorney General) & 5 Others [2015] eKLR, where the Court explained the three stages contemplated under Order 24 Rule 3 as follows:“There are three stages according to these provisions. As a general rule, the death of a plaintiff does not cause the suit to abate if the cause of action survives. But within one year of the death of the plaintiff or within such time as the court may in its discretion for 'good reason' determine, an application must be made for the legal representative of the deceased plaintiff to be made a party. The 'good reason' therefore relates to an application for extension of time to join the plaintiff's legal representative to the suit.Secondly, if no such application is made within one year or within the time extended by leave of the court, the suit shall abate. Where a suit abates, no fresh suit can be brought on the same cause of action.Thirdly, the legal representative of the deceased plaintiff may apply for the abated suit to be revived after satisfying the court that he was prevented by 'sufficient cause' from continuing with the suit. The effect of an abated suit is that it ceases to exist in the eye of the law. The abatement takes place on its own force by passage of time..." 16.The Appellants further relied on Rebecca Mijide Mungole & Another v Kenya Power & Lighting Company Ltd & 2 Others [2017] eKLR, where the Court of Appeal held:“The question in the appeal is essentially whether in seeking to revive an abated suit, the applicant must in the first place seek extension of time within which to do so... It is imperative and logical that where the legal representative is not joined within one year, an application must first be made for extension of time... It is only after the time has been enlarged that the legal representative can have capacity to apply to be made a party... It is incompetent to seek joinder or revival when the prayer for more time to apply has not been granted." 17.Relying on the foregoing authorities, the Appellants submitted that it is incompetent to seek joinder or revival of an abated suit without first obtaining an extension of time. 18.The Appellants submitted that the deceased died on 18th July 2014 and, since no application for substitution was made within one year, the suit automatically abated on 18th July 2015. 19.It was further submitted that the Respondents neither sought nor obtained leave to extend time within which to substitute the deceased, nor did they provide any good reason for the failure to do so; therefore, it was submitted that they lacked the legal capacity to seek revival of the suit. 20.The Appellants urged the Court to note that the Respondents' application for revival contained no prayer seeking enlargement of time. 21.The Appellants also relied on the decision in Jenifer Atieno Magambo (Suing as the Legal Representative of Magambo Oreko) v South Nyanza Sugar Co. Ltd [2020] eKLR, where the Court held that an application for extension of time is an indispensable procedural step and that failure to seek such extension renders both the substitution and revival applications incompetent. 22.The Appellants further submitted, relying on the Said Sweilem Gheithan Saanum cited earlier, that revival of an abated suit is purely discretionary and can only be granted upon proof of sufficient cause. 23.They equally relied on the Rebecca Mijide case also cited earlier, for the proposition that revival of an abated suit is not automatic. 24.The Appellants further relied on the Court of Appeal decisions in Charles Wanjohi Wathuku v Githinji Ngure & Another, Civil Application No. 9 of 2016, and John Mutai Mwangi & 26 Others v Mwenja Ngure & 4 Others, Civil Appeal No. 126 of 2014, both of which emphasized strict compliance with statutory timelines. 25.The Appellants observed that in the Rebecca Mijide case, a delay of six years, attributed to the refusal of a local chief to issue confirmation letters, was held to be inordinate and insufficient to warrant revival. 26.The Appellants also cited the decision of the Court in Attorney General v Law Society of Kenya & Another [2013] eKLR, where Musinga J. defined "sufficient cause" as follows:“...the burden placed on a litigant...to show why a request should be granted or an action excused. Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful..." 27.The Appellants submitted that the application for revival was brought approximately seven years after the death of the deceased. 28.Similarly, the limited grant of letters of administration ad litem was only obtained after seven years. 29.According to the Appellants, no explanation amounting to sufficient cause was placed before the trial court to justify the delay as contemplated under Order 24 Rule 7. 30.The Appellants therefore urged this Court to find that the trial court exercised its discretion on wrong principles. 31.Lastly, the Appellants pointed out that although the deceased died on 18th July 2014, the learned magistrate erroneously referred to the date of death as 18th July 2024 in the impugned ruling. 32.They further submitted that despite correctly appreciating that the application offended Order 24 Rule 3(2), the learned magistrate nonetheless invoked Order 50 Rule 6 to enlarge time, thereby misdirecting herself in law. 33.The Appellants accordingly prayed that the appeal be allowed, the ruling dated 26th January 2024 be set aside, the application for revival be dismissed with costs, and the costs of the appeal be awarded to the Appellants. 34.The appeal was opposed by the Respondents who filed submissions in response to the Appellants. 35.In brief, the Respondents submitted that (the deceased) Husein Nurdin Swalehe was the plaintiff before the trial court, where he sought compensation for injuries sustained in a road traffic accident that occurred on 18th March 2011. 36.They submitted that Husein Nurdin Swalehe (the deceased) subsequently passed away and that his advocate lost contact with him until his legal representatives later informed him of his death. 37.The Respondents submitted that after successfully obtaining letters of administration ad litem, they filed the Notice of Motion dated 8th November 2021 seeking orders that:i.the abated suit be revived; andii.they be substituted in place of the deceased plaintiff to enable them to prosecute the suit. 38.They submitted that upon hearing the application, the learned trial magistrate properly exercised her discretion by allowing the application as prayed and granting the Appellants liberty to amend their defence. 39.The Respondents submitted that the law permits legal representatives of a deceased litigant to apply to be made parties and proceed with the suit. 40.The Respondents further submitted that the proviso to Order 24 Rule 3 empowers the court, upon good reason being shown, to extend the time within which substitution may be sought. 41.The Respondents also relied on the provisions of Order 24 Rule 7(2) of the Civil Procedure Rules, which provides that where sufficient cause is shown, the court may revive an abated suit upon such terms as it considers just. 42.The Respondents submitted that they were unaware of the existence of the suit during the deceased's lifetime and only discovered it after coming across correspondence exchanged between the deceased and his advocates. 43.The Respondents maintained that the trial court neither misdirected herself in law nor took into account irrelevant considerations while exercising her discretion. 44.On the question of extension of time, the Respondents adopted the reasoning of the trial court: that although the suit had abated under Order 24 Rule 3(2) following the death of the plaintiff on 18th July 2014, the court nonetheless possessed jurisdiction under Order 50 Rule 6 of the Civil Procedure Rules to enlarge time notwithstanding the lapse of the prescribed period. 45.The Respondents submitted that the discretion conferred upon the court under Order 50 Rule 6 permits the court, in appropriate circumstances, to override the procedural requirements under Order 24 Rule 3 where the interests of justice so demand. 46.Finally, relying on Article 159(2)(d) of the Constitution, the Respondents submitted that the Appellants were relying on procedural technicalities to defeat substantive justice. 47.For those reasons, they urged the Court to uphold the trial court's exercise of discretion, dismiss the appeal, and award costs to the Respondents. 48.I have read the record of appeal, the ruling of the trial court, the grounds of appeal and the parties' respective submissions from which I have identified the following issue as falling for determination: 49.Whether the learned trial magistrate misdirected herself in law and fact, thereby arriving at a wrong decision. 50.The purport and import of the provisions of the said Order 24 have received judicial elucidation by the Court of Appeal. 51.The Court of Appeal in Said Sweilem Gheithan Saanum v Commissioner of Lands & 5 Others [2015] eKLR, the Court undertook an illuminating exposition of Order 24 Rule 3: the court identified three distinct aspects of the provision: 52.First, substitution ought to be undertaken within one year of the death of the plaintiff or within such extended period as the court may, for good reason, allow. 53.Secondly, where no substitution is done within that period, the suit abates automatically by operation of law. The Court emphasized that abatement is not dependent upon a judicial declaration but occurs automatically upon expiry of the prescribed period 54.Thirdly, a legal representative may seek revival of the abated suit upon demonstrating sufficient cause for the failure to continue the proceedings. 55.That position, as pointed out by the Appellant, was reaffirmed by the Court of Appeal, in Rebecca Mijide Mungole & Another v Kenya Power & Lighting Co. Ltd & 2 Others [2017] eKLR. 56.This court is bound by the ratio decidendi of the Court of Appeal discernible from its decisions referred to under the doctrine of stare decisis, which lies at the core of our judicial system. 57.The centrality of precedent to the rule of law has received no lesser affirmation than by our Supreme Court, which in the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2013] eKLR, the Court observed that adherence to precedent promotes certainty, consistency and public confidence in the administration of justice while ensuring that like cases are decided alike. 58.The facts of the case that are not in dispute are that the plaintiff died on 18th July 2014. 59.It is also not in dispute that since no application for substitution was made within one year, the suit automatically abated on 18th July 2015. This fact was also appreciated by the trial court. 60.It is also not in dispute that no application for substitution was made within the one year permitted by law under Order 24. 61.The trial court nonetheless retained the power to extend time under Order 24 Rule (2) of the Civil Procedure Rules. 62.The Respondents, vide a Notice of Motion application dated 8th November 2021, sought that the abated suit be revived and for them to be substituted in place of the deceased plaintiff to enable them to prosecute the suit. 63.I have perused the record and particularly the Notice of Motion application dated 8th November 2021, and I confirm that the Respondents did not seek an extension of time within which they were to be joined as legal representatives to the suit. 64.The question then arises whether the Respondents needed to have sought an extension of time and the consequence of not doing so. 65.The trial court did not think it necessary for the Respondent to seek an extension but proceeded to grant an extension of time, though not sought; the trial court did so under Order 50 Rule 6 of the Civil Procedure Rules. 66.Order 24 Rule (2) made provision for extension of the time under the said Order; the trial court could not therefore resort to the general powers of the court under Order 50 when Order 24, in respect of which both the time for abatement and revival of suits had already provided for extension of time. 67.At the time the trial court was hearing and determining the matter, there was in existence binding precedent from the Court of Appeal on sequence and criteria to be followed in respect of applications for substitution, abatement, enlargement of time and revival of suits under the said Rule. 68.The Court of Appeal addressed its mind to that very question in the case of Rebecca Mijide Mungole & Another v Kenya Power & Lighting Company Ltd & 2 Others [2017] eKLR, where the Court of Appeal held as follows:“The question in the appeal is essentially whether in seeking to revive an abated suit, the applicant must in the first place seek extension of time within which to do so... It is imperative and logical that where the legal representative is not joined within one year, an application must first be made for extension of time... It is only after the time has been enlarged that the legal representative can have capacity to apply to be made a party... It is incompetent to seek joinder or revival when the prayer for more time to apply has not been granted." 69.The same approach was adopted in Jenifer Atieno Magambo (Suing as the Legal Representative of Magambo Oreko) v South Nyanza Sugar Co. Ltd [2020] eKLR, where the Court held that failure to seek enlargement of time rendered the subsequent prayers for substitution and revival incompetent. 70.The Respondent urged that Order 24 should not be construed strictly, as that would negate the declared purposes of Article 159 of the Constitution that enjoin substantive justice over observance of procedural nuances. 71.In Raila Odinga & Others v IEBC & Others (2013) eKLR, the Supreme Court observed that Article 159 was never intended to oust mandatory procedural rules or to create an open-ended discretion allowing courts to disregard express legal requirements. Similarly, in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, the Supreme Court stated that procedural rules are handmaidens of justice and not irrelevant technicalities; parties are expected to comply with them unless sufficient legal basis exists for departure 72.In the present case, the Respondents have not made out a case for departure from the binding view of the Court of Appeal on the mandatory requirement for extension of time before substitution after the lapse of the statutory period for such substitution. 73.That aside, the Respondents did not provide a satisfactory explanation as to why they took almost 7 years to obtain letters of administration ad litem. I have perused the application before the trial court, and there is no sufficient explanation for such dilatory conduct on their part. 74.The deceased died on 18 July 2014; the application for revival was not filed until November 2021, approximately seven years later; that, to my mind, is an inordinate delay that needed sufficient explanation. Being unaware of the proceedings may be a plausible explanation, but what prevented the Respondents from applying for letters of administration ad litem for that entire period. I find the explanation offered insufficient to warrant revival. prolonged and unexplained delay militates against exercise of judicial discretion. 75.Applying the test in Mbogo and another vs Shah (1968) EA 93, namely that interference is warranted where the lower court misdirected itself, took into account irrelevant considerations, failed to consider relevant matters, or arrived at a plainly wrong decision occasioning injustice. 76.I am inclined, nay, duty-bound to interfere with the decision of the trial court; the learned magistrate departed without any justification from binding precedent from the Court of Appeal setting out the sequence and criteria for substitution, abatement, enlargement of time and revival of suits under Order 24 of the Civil Procedure Rules. 77.The trial court misdirected itself by granting an order extending time, which order was never sought by the applicant in the application before the Court. 78.The trial court also failed to interrogate the delay in obtaining letters of administration ad litem, which was a relevant factor to be considered before issuing the orders that the court did. 79.I am persuaded that the learned magistrate exercised her discretion on wrong principles, thereby arriving at a wrong decision.The upshot is that I find the appeal meritorious and I hereby order as follows;A.The appeal is allowedB.The ruling and order of the court (Hon. G.Sogomo) in Mombasa CMCC No. E377 of 2013 delivered on 26th January 2024 is hereby set aside.C.The Respondent’s Notice of Motion dated 8th November 2021 in Mombasa CMCC No. E377 is struck out.D.The Appellant shall have the costs of the Appeal. DELIVERED VIA MICROSOFT TEAMS ON 16TH JULY 2026 AT MOMBASA HIGH COURT.EMMANUEL BITTAJUDGE OF THE HIGH COURTDelivered in the presence ofC/A NechesahMulongo for AppellantsNyabena for Respondents