[2023] KEELRC 3398 (KLR)

Wachira & another v Global Alliance Africa for Africa (Cause 931 of 2017) [2023] KEELRC 3398 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEELRC 3398 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 931 of 2017

SC Rutto, J

December 8, 2023

Between

Gladys Njeri Wachira

Applicant

and

Simon Kihiko Kimani

Claimant

and

Global Alliance Africa For Africa

Respondent

Ruling

1. Before me for determination is a Notice of Motion Application dated 10th August 2023, expressed to be brought under Order 24, Rule 4, Rule 7(2), Order 51, Order 10 Rule 11 of the Civil Procedure Rules, 2010, Section 1A, 1B, & 3A of the Civil Procedure Act and Article 50 and 159(2) (d) of the Constitution of Kenya, 2010, and all other enabling provisions of the law.

2. The Application seeks the following orders;1. Spent2. That this Honourable court be pleased to set aside the orders given on 18th May 2022 dismissing the Claimant’s suit and the suit herein be reinstated and/or revived for hearing and determination on merits.3. That the Claimant herein Simon Kihiko Kimani deceased be substituted with Gladys Njeri Wachira being the deceased’s legal representative.4. That the pleadings be amended so as to enjoin the said Gladys Njeri Wachira being the legal representative of the estate of Simon Kihiko Kimani as the Claimant in this case instead of Simon Kihiko Kimani deceased.5. That Honourable Court be pleased to make such further or other order(s) as it may deem appropriate.6. That the cost of this Application be provided for.

3. The Application is premised on the grounds set out in its body and on the Supporting Affidavit of Ms. Gladys Njeri Wachira, who avers that:i.The Claimant Mr. Simon Kihiko Kimani passed away on 9th August 2021 during the pendency of the suit;ii.She survived the deceased Claimant;iii.Upon the Claimant’s demise, she was left without any means of livelihood owing to the fact that the Claimant was the sole breadwinner for the family hence she was left focusing solely on providing for the children’s basic needs with the meagre monies that she had.iv.The deceased Claimant passed on at a time when COVID-19 had seriously ravaged the economy which further made it extremely difficult for her to lodge the petition for a limited grant for lack of finances.v.Owing to financial constraints, she was not able to lodge the Petition for limited grant ad litem for purposes of substitution of the deceased Claimant in the instant suit until sometime in January 2023. vi.After the Claimant’s death, she petitioned the Court for Limited Grant Ad litem for purposes of substituting the deceased Claimant in the instant suit. The Limited Grant was issued on 11th July 2023 at Nyeri Magistrates Court.vii.She is informed by her Advocates on record that Miss Esther Wairimu, who has since left the law firm inadvertently forgot to diarize the hearing date of 18th May 2022 in her diary thus the reason for not attending court on that date.viii.She is also pleading with this court to allow her application for substitution out of time. She just learnt that the Claim was dismissed sometimes in early July 2023 when she visited the court registry to peruse the court file.ix.She is further informed by her Advocates on record that the Respondent will not suffer any prejudice that cannot be compensated by award of costs.

4. The Respondent opposed the Application through the Replying Affidavit sworn on 26th September 2023, by Mr. Thomas Derdak who avers that:i.The Application is frivolous, capricious and an abuse of the court process.ii.No Reasonable cause has been shown and specifically, no legal disability has been elicited since the 9th of August 2023 to warrant allowing the said Application by this Honourable court.iii.Only prayer 3 can issue as the other prayers can only be allowed after substitution.

5. On 27th September 2023, the Court directed that the Application be canvassed by way of written submissions. Notably, both parties uploaded their written submissions on the e-filing portal but did not pay for the same. As such, the same were not duly filed.

Analysis and Determination 6. Order 24 Rule 3 of the Civil Procedure Rules, allows for the substitution of a plaintiff in the event of death where the cause of action survives. However, such an application ought to be made within one year following the death of the deceased party and in default, the suit abates. The provision is couched as follows:(2)Where within one year no application is made under subrule (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.

7. In this case, it is evident that the Claimant passed away on 19th August 2021, hence pursuant to the provisions of Order 24 Rule 3 of the Civil Procedure Rules, 2010, the Claim abated on 19th August 2022, one year after the deceased Claimant passed on.

8. From the record, the instant Application was brought to Court on 18th August September 2023, close to two years after the deceased Claimant had passed on.

9. The Court of Appeal in the case of Rebecca Mijide Mungole & another vs Kenya Power & Lighting Company Ltd & 2 others [2017] eKLR, determined as follows;“Speaking generally, by operation of the law, a suit will automatically abate where a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues if no application is made within one year following his death.”

10. It is also notable that in this case, the Applicant has not brought an Application for extension of time hence the instant Application has no basis. In this regard, I echo the determination in the case of Rebecca Mijide Mungole & another vs Kenya Power & Lighting Company Ltd & 2 others (supra) thus:“Because the suit will only abate where, within one year of the death of the plaintiff no application is made to cause the legal representative of the deceased plaintiff to be joined in the proceedings, it is imperative and we may add, logical, where the legal representative is not so joined within one year, that an application be made for extension of time to apply for joinder of the deceased plaintiff’s legal representative. It is only after the time has been extended that the legal representative can have capacity to apply to be made a party. Order 24 must be construed by reading it as a whole and the sequence in which it is framed must be followed without short-circuiting it. The proviso to rule 3(2) to the effect that the court may, for good reason on application, extend the time goes to show that without time being extended, no application for revival or joinder can be made. It is the effluxion of time that causes the suit to abate. It is that time that must, first be extended.”Underlined for emphasis

11. As stated herein, the Applicant has not sought to extend time as required under Order 24 Rule 3 (2) of the Civil Procedure Rules. Therefore, the Application by the Applicant to substitute the deceased Claimant close to two years after his death cannot be allowed for the reason that upon abatement of the suit by operation of the law, the suit could only be revived by an application extending time.

12. Against the foregoing analysis, I cannot help but dismiss the Applicant’s Application dated 10th August 2023.

13. Taking into account the circumstances pertaining the institution of the Application herein, it is only fair and just that each party bears its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER, 2023. ………………………………STELLA RUTTOJUDGE