Titus Gethi Ndwiga v James Njoroge Githu & another [2022] KEELC 1046 (KLR)

The 1st Defendant died on 20th December 2013 and the suit should have abated by 30th December 2014 under Order 24 Rule 4. The court's order of 27th November 2014 gave the suit a lifeline by requiring substitution within 60 days, but substitution was not effected and the orders were not extended. The Plaintiff's explanation regarding delay in obtaining letters of administration did not amount to sufficient cause to revive the abated suit or set aside the ruling of 19th December 2019.

The Plaintiff's claim was for 2 acres allegedly fraudulently transferred by the 1st Defendant in breach of the sale agreement and then transferred to the 2nd Defendant. The 2nd Defendant was not a party to the contract of 27th August 2009, so the Plaintiff would have to prove his case against the 1st Defendant, but that case abated. Consequently the claim against the 2nd Defendant, whose fate was tied to that of the 1st Defendant, also fails.

The court has power to amend pleadings under Section 100 of the Civil Procedure Act as read with Order 8 Rule 3. Although the amendments seeking special damages and mesne profits did not derogate from the original defence despite being brought six years later, the counterclaim could not stand once the Plaintiff's suit was found to have abated, so the application failed.

Applying the test that an applicant for leave must show a prima facie arguable case and absence of inordinate delay, the court noted the restrictions were registered in 2012 during the pendency of the suit. Although ten years is long, the court held the period was not inordinate in the circumstances and granted leave, with 21 days to file the substantive motion, or alternatively to serve the ruling on the Respondents and seek removal of the restriction.