[2018] KEELC 2122 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC CASE NO. 920 OF 2015

(CONSOLIDATED WITH HCCC NO. 465 OF 2006 & 1241 OF 2006)

UMEED ALI ERAJ

MIRABEAU DA GAMAROSE

(Suing as Personal Representatives of the Estate of Doctor Yusuf Ali Eraj)............................PLAINTIFFS

Raana Fatima Eraj (Also Known As RAANA SHELDON WILLIAMS)......INTENDED 1ST PLAINTIFF

MARIA BERNADETTE QUADROS...............................................................INTENDED 2ND PLAINTIFF

ADEEL HAQ.......................................,...............................................................INTENDED 3RD PLAINTIFF

(Suing as personal representatives of the Estate of Doctor Yusuf Ali Eraj)

VERSUS

KWIKFIT TYRES & AUTOCARE LIMITED........................................................................DEFENDANT

RULING

Through the application dated 30/6/2017, the Plaintiff seeks to substitute Raana Fatima Eraj, Adeel Haq and Maria Bernadette Quardos as Plaintiffs to this suit in the place of Umeed Ali Eraj and Mirabeu Da Gama Rose, who were suing as personal representatives of the Estate of Dr. Yusuf Ali Eraj. In the application, the Plaintiff also seeks to have Kirit Khakhar joined as a Defendant to the suit on the basis that he was a guarantor to the lease dated 1/11/2000, which forms the subject matter of the suits.

The application is made on the grounds that the current Plaintiffs died and the persons proposed to be substituted as Plaintiffs were appointed as the substitute executrix and additional executor of the estate of the late Dr. Yusuf Ali Eraj in place of Umeed Ali Eraj vide the court order issued on 26/4/2016. Maria Bernadette Quardos was substituted as the executrix of the state of Dr. Yusuf Ali Eraj Estate in place of the Plaintiff. The suit arose out of lease agreements over L.R. No. 1870/IX/53 situated in Westlands (“the Suit Property”) which the Government allocated to Dr. Yusuf Ali Eraj.

The Plaintiff claims that the guarantor in the lease agreed to assume liability for any monies payable by the Defendant in the event that the Defendant was unable to pay the debt. The Plaintiff still wishes to pursue the prayer for mesne profits pleaded in the plaint. This suit was consolidated with HCCC No. 1241 of 2006 and HCCC No. 465 of 2006. The Plaintiff avers that part of the Suit Property was compulsorily acquired by the Kenya Urban Roads Authority and the Defendant does not have attachable assets.

Adeel Haq swore the supporting affidavit. He was appointed as the additional executor of the estate of Yusuf Ali Eraj after both Plaintiffs died. He urges that it is only fair that the Plaintiffs are substituted for purposes of settling the on-going suit. He avers that Kirit Khakhar ought to be joined as a Defendant since he had given his personal guarantee to the estate of Doctor Yusuf Ali Eraj to secure payment of sums due from the Defendant. He attached a copy of the order made by the court appointing him as a further executor with Raana Fatima Eraj. He also annexed a copy of the order made on 3/3/2008 granting probate to Bernadette Quardos. He annexed a copy of the guarantee which Kirit Khakhar gave on 14/11/2002 vide which he undertook to pay to the Estate of Dr. Yusuf Ali Eraj any rent or other sums due from the Defendant. The copy of the plaint in HCCC No. 1241 of 2006 shows that the landlord let to the Defendant the Suit Property for a term of 6 years and 7 months from 1st November, 1999. The Plaintiffs’ claim is for vacant possession since the Defendant has wrongfully refused to give up possession and continues to unlawfully enjoy the use and possession of the premises without paying rent. The Plaintiffs seek mesne profits from 1/6/2006 until possession is delivered by the Defendant.

The Defendant opposed the application for substitution through the grounds of opposition it filed. It claims that the cause of action did not survive the demise of the Plaintiffs. It also claims that the suit abated upon the Plaintiffs’ demise pursuant to Order 24 of the Rules. It also denies that the Plaintiffs have no cause of action against it.

Parties made oral submissions. The Plaintiff’s advocates submitted that Dr. Yusuf Ali Eraj was the owner and landlord of the premises leased to the 1st Defendant. After the expiry of the lease, there was a dispute over rent which dispute still subsists to date. The Plaintiff seeks to join the guarantor in respect of the rent arrears he undertook to pay to the Plaintiff. The Plaintiff submitted that under Order 1 Rule 10 (2) and Order 24 Rule 1 of the Civil Procedure Rules, the suit survived the death of the Plaintiff. He explained that the delay in making this application for substitution was occasioned by the succession proceedings which took long.

The Defendant counsel argues that there was inordinate delay in seeking substitution and that the suit therefore abated. He did not dispute the fact that Dr. Yusuf Ali Eraj was the Defendant’s landlord. The Defendant urged that there is no cause of action against the intended 2nd Defendant since the cause of action against the guarantor arose on 2/10/2006 when this suit was filed. He submitted that the claim against the proposed 2nd Defendant is statute-barred as it should have been filed by 2012.

The Plaintiffs are Umeed Ali Eraji and Mirabeau Da Gama Rose. Umeed Ali Eraji died in January, 2013 while Mirabeau Da Gama Rose died in June 2012. The application to substitute them in the suit was made on 30/6/2017 which is more than one (1) year from the date of their deaths. The Defendant argued that even though the proviso allowed court to extend time, the Plaintiffs had not applied to extend the time within which to seek substitution of the Plaintiffs.

The Plaintiff submitted that a consent was entered into with the Defendant on 15/6/2017 for substitution of the Plaintiffs and the Defendant cannot go back on that issue. The Plaintiff maintained that the contract of guarantee is a separate contract and is not bound by limitation until a claim is made against the guarantor.

The Plaintiff relied on the Canadian case of Ontario Incorporated v Chorny in support of its argument that a guarantee is a separate contract and is not bound by the limitation of time until a claim is made against the guarantor. The court notes that the Ontario Supreme Court found that a demand made on a guarantee was unenforceable after the limitation period applying to the principal debt expired. The Plaintiff submitted that the claim against the guarantor was made in 2006. If that is so, then the Plaintiff’s claim against the guarantor should have been filed within 6 years of that date.

The court has considered the application and the submissions of counsels. The court agrees with the proposed Plaintiffs that the suit against the Defendant survived the death of the Plaintiffs and by extension the earlier executors who the Plaintiff seeks to substitute.

The executors died in 2012 and 2013. The suit abated one year after the death of the last executor since no application for substitution of the Plaintiffs was made within one year of the death of the last surviving executor.

The proviso to Rule 3 of Order 24 of the Civil Procedure Rules gives the court discretion to extend the time for applying for substitution for good reason on application by the Plaintiff. No application was made for extension of the time within which to substitute the new executors of the Estate of Doctor Yusuf Ali Eraj as Plaintiffs in the suit.

The court dismisses the application dated 30/6/2018. Each party shall bear its own costs.

Dated and delivered at Nairobi this 26th day of July 2018.

K. BOR

JUDGE

In the presence of: -

Ms. Mutua holding brief for Mr. Munyaka for the Plaintiffs

Mr. Ongoro holding brief for Mr. Munyua for the Defendant

Mr. V. Owuor- Court Assistant