Mwangi & another v James Karanja Komu t/a Rubis Service Station Murang'a & another; Mwangi & another (Intended Interested Party)

The Court noted there is no fixed measure of inordinate delay; it depends on the circumstances and explanation given. The applications were filed about 25 days after the ruling of 26th January 2023 dismissing the preliminary objection. The 2nd Defendant attributed the delay to attempted out-of-court settlement, which the Court accepted as credible from the proceedings of 18th July 2022. Delay before a hearing date was fixed was not fatal, though equity aids the vigilant.

Section 7 of the Civil Procedure Act requires that the issue was directly and substantially in issue, between the same parties under the same title, and heard and finally determined by a competent court. The earlier ruling of 26th January 2023 dismissed the preliminary objection only because it did not meet the Mukisa Biscuits test; determining locus would have required investigation of facts, so the issue was never determined on the merits.

The suit property belonged to the deceased, whose estate is governed by the Law of Succession Act. Sections 79 and 83(a) vest the estate in personal representatives, who alone may sue. The grant issued to the 1st Plaintiff was revoked and he withdrew; no grant existed in favour of the 2nd Plaintiff, and no evidence of transmission or allocation was produced. The claim was for eviction, not intermeddling, so the beneficiary-preservation exception did not apply.

Having struck out the suit for want of locus standi, the Court found no reason to determine the review and joinder applications, since the substratum of the suit was gone. The 2nd Plaintiff was left at liberty to file a fresh suit after obtaining a grant.