[2019] KEHC 12407 (KLR)

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

CORAM: D. S. MAJANJA J.

CIVIL CASE NO. 1885 OF 1999

BETWEEN

ZACHARY WARWIMBO RUHANG’I.........................................1ST PLAINTIFF

S. KAHARI MUTHAMBURE.......................................................2ND PLAINTIFF

JOHN PETER KAMAU.................................................................3RD PLAINTIFF

AND

STANDARD CHARTERED BANK OF KENYA....................1ST DEFENDANT

KINYANJUI WANJUU T/A DOLPHIN AUCTIONEERS....2ND DEFENDANT

GERISHON KAMAU KIRIMA...............................................3RD DEFENDANT

RULING

1. This matter has been on the court rolls for the last 19 years. The plaintiffs’ case is that their properties, which were charged to the 1st defendant to secure certain advances, were sold to the 3rd defendant in circumstances that they considered fraudulent. They seek, amongst other orders, a declaration annulling the sale of the properties to the 3rd defendant. The suit was heard in part Azangalala J., who took the testimony of two witnesses; John Peter Ruhangi (PW 1) and Zachary Waruimbo Ruhangi (PW 3). In due course, the 2nd plaintiff, 2nd and 3rd defendants passed away. Thereafter the matter went into abeyance.

2. Counsel for the plaintiff requested for directions in the letter dated 20th April 2011 addressed to this court, inter alia, on the following terms:

We act for the Plaintiffs herein.

The 2nd plaintiff passed away on 8th December 2009.

The 2nd and 3rd defendants have also since similarly passed away.

However under Order 24 Rule 2 of the Civil Procedure Rules 2010, ‘where the cause of action survives’ as in the instant case, “the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving Plaintiff or Plaintiffs, or against the surviving Defendant or Defendants”

Consequently we shall be obliged if you could list the above matter before the duty Judge for Mention for Directions to enable us deal with the matter further.

3. Prior to filing that letter, counsel for the 2nd plaintiff had filed an application dated 8th October 2010 made under Order 23 Rules 3and12 of the Civil Procedure Rules(“the Rules”) seeking an order for substitution for the 2nd plaintiff. When the matter came up for directions before me, counsel elected to withdraw that application in favour of taking directions under Order 24 Rule 2 of the Rules as shown in the aforementioned letter. When I inquired from counsel whether he required to substitute all the deceased parties, he stated that it was not necessary in light of the provisions of Order 24 Rule 2 of the Rules as the surviving plaintiff was ready to proceed with the matter against the surviving defendant as the cause of action was still alive.

4. The suit belongs to the plaintiffs and they or the surviving ones are entitled to proceed in the manner they deem fit subject to any consequences that may accrue following the death of any of the parties. Accordingly, and in line with the directions sought by counsel for the plaintiff, the surviving plaintiff may proceed against the 1st defendant since the 2nd and 3rd defendants are now deceased.

5. I now invite the parties to take directions for further hearing.

DATED and DELIVERED at NAIROBI this 22nd day of NOVEMBER 2019.

D. S. MAJANJA

JUDGE

Mr Meenye instructed by Meenye and Kirima Advocates for the plaintiffs.

Mr Chege instructed by Amollo & Gachoka Advocates for the 1st defendant.

Mr Mureithi instructed by Gadhia & Mucheru Advocates for the 2nd defendant.