[2024] KECA 823 (KLR)

Tichu & 16 others v Ikere & 3 others (Sued jointly as administrators of the Estate of Ikere Gateau- (Deceased) & 2 others (Civil Application E023 of 2021) [2024] KECA 823 (KLR) (12 July 2024) (Ruling)

Neutral citation: [2024] KECA 823 (KLR)

Republic of Kenya

In the Court of Appeal at Nakuru

Civil Application E023 of 2021

F Sichale, JA

July 12, 2024

Between

Kamau Tichu

1st Appellant

Jackson Waweru Kamau

2nd Appellant

Simon Kinyua Kamau

3rd Appellant

David Wainaina Kamau

4th Appellant

Samuel Njuguna Kamau

5th Appellant

Francis Waweru Kamau

6th Appellant

Isaac Mugo Kamau

7th Appellant

Paul Murigi Kamau

8th Appellant

Joshua Njeke Kamau

9th Appellant

James Mwangi Kamau

10th Appellant

Paul Murigi Kamau

11th Appellant

Daniel Mwangi Kamau

12th Appellant

Peter Maina Kamau

13th Appellant

Daniel Mwangi Kamau

14th Appellant

Peter Maina Kamau

15th Appellant

Joseph Wainaina Kamau

16th Appellant

Ebrahim Muriithi Kamau

17th Appellant

and

Stephen Gitau Ikere Loise Nyokabi Lucy Nyambura Ikere Samuel Kibaru Ikere (Sued Jointly As Administrators Of The Estate Of Ikere Gateau- (Deceased)

1st Respondent

The Hon Attorney General

2nd Respondent

The Commissioner Of Lands

3rd Respondent

(Being an Application for Substitution pursuant to Rule 99 (1) of the Court of Appeal Rules 2010)

Ruling

1. By the Motion on Notice dated 10th November 2023, brought pursuant to Rule 99 (1) of the Court of Appeal Rules, 2010 and all other enabling provisions of the Law, David Wainaina Kamau (hereinafter the applicant), has urged this Court sitting as a Single Judge to grant the following orders:“(i)That David Wainaina Tichu be substituted in place of Kamau Tichu (now deceased) as the legal representative of the Estate of the 1st appellant.(ii)That costs of this application be provided for.”

2. The motion is supported on the grounds on the face of the motion and an affidavit sworn by the applicant, who deposed inter alia that the 1st appellant was now deceased (hereinafter the deceased), having died on 10th November 2022.

3. He further deposed that being the deceased’s son, he had since taken out letters of Administration Ad Litem to enable him proceed with this cause in place of the deceased and that the deceased’s cause of action indeed survives him and ought to be fully and competently prosecuted to its final determination by this Honourable Court and that in view of the foregoing, and in the interests of justice the motion was for allowing.

4. There was no response on part of the respondents’ despite being served with the application on 29th January 2024. The applicant’s motion is therefore unopposed.

5. It was submitted for the applicant that the suit herein revolved around overlapping pieces of land belonging to the deceased and the 1st respondent who was also deceased and who had been since substituted by his surviving children who were now the Administrators’ of his Estate.

6. It was further submitted that the applicant had since taken out Letters of Administration Ad Litem in respect of the Estate of the deceased and that the instant motion was not opposed. Consequently, I was urged to allow the motion as prayed.

7. I have carefully considered the motion, the grounds thereof, the supporting affidavit, the annexures thereto, the applicant’s submission and the law.

8. As I had indicated earlier, the applicant’s motion is not opposed.Rule 99 (1 of the Court of Appeal Rules pursuant to which the applicant’s is premised is titled; “Death of party to appeal.”

9. The same provides as follows:“(1)An appeal shall not abate on the death of the appellant or the respondent but the Court shall, on the application of any interested person, cause the legal representative of the deceased to be made a party in place of the deceased.(2)If no application is made under sub-rule (1) within twelve months from the date of death of the appellant or respondent, the appeal shall abate.

10. In the instant case, the deceased died on 10th November 2022 and the applicant’s motion was filed in Court on 10th November 2023, which is well with the 1-year period provided for by Rule 99 of the Court of Appeal Rules (supra). There is no doubt therefore that the applicant’s motion dated 10th November 2023 is for allowing.

11. Accordingly, I find the applicant’s motion dated 10th November 2023, to be merited and I accordingly allow the same as prayed.

12. Costs shall be in the cause.It is so ordered.

DATED AND DELIVERED AT NAKURU THIS 12TH DAY OF JULY, 2024. F. SICHALE.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR