Silas Njeru Njiru & 2 others v Mugo Mukere; Leonard Njeru Mukera & another (Intended Defendants/Respondents) [2022] KEELC 1672 (KLR)

The applicants moved under Order 24 rules 1, 2 and 3 instead of rule 4 which governs death of a defendant. Relying on Republic v Anti-Counterfeit Agency ex-parte Surgippharm and the Supreme Court in Steyn v Gnecchi-Ruscone, and guided by Article 159(2)(d) on substantive justice, the court held that wrong citation does not deprive it of jurisdiction where jurisdiction exists, and considered the application under Order 24 rules 4 and 7.

The intended respondents argued substitution after one year is impossible and extension applies only to deceased plaintiffs. The court held Order 24 rule 7(2) permits a plaintiff to apply to revive a suit that has abated or to set aside dismissal, and thus the court has power to consider revival of a suit abated against a deceased defendant.

The applicants issued a citation prompting the successors to take out grants; the successors instead filed their own succession without informing the applicants. Following Geoffrey Mwangi Kihara v Mwihoko Housing Company, such conduct constitutes sufficient cause. The one-year delay after the Misc Appl No. 10 of 2019 order was held not inordinate given these special circumstances and the applicants' diligence.

Substitution of a deceased defendant can only be effected through the legal representative of the estate. The intended respondents held letters of administration dated 11th January 2018 in Embu Succession Cause No. 6 of 2017, so they are the right parties to replace the deceased defendant.