Kihumba v Hussein & 3 others

(c) That a cursory glance at the amended plaint dated September 1, 2021 reveals no apparent cause of action and the suit is superuous as against the 3rd defendant/applicant; (d) That the suit is frivolous, vexatious and an abuse of the court process as the plainti has improperly enjoined the applicant; and (e) That the suit is incurably defective having been led beyond the statutory period of limitation. 3. John Njuguna Kihumba (the plainti) is opposed to the application. In his replying adavit sworn on March 7, 2022 and led herein on March 11, 2022, the plainti avers that the application as led is legally defective for want of material regarding the alleged demise of the 1st defendant. The plainti asserts that the 3rd defendant has not demonstrated and/or proved that indeed the 1st defendant is deceased. 4. I have carefully perused and considered both the application and the response thereto. The 3rd defendant herein urges the court to declare the suit herein as having abated and to strike out the same as against itself. It is the 3rd defendant’s case that the 1st defendant passed away on November 16, 2021 and that the plainti has failed to substitute him to-date. 5. On the other hand, the 3rd defendant asserts that it has been improperly enjoined as a party herein as the plainti makes no claim as against itself. 6. While the plainti faulted the 3rd defendant’s application on the basis that the 3rd defendant had failed to provide any evidence of the 1st defendant’s death, the plainti did not make any reference to the 3rd defendant’s contention that it had been improperly enjoined in this suit. 7. As it were, by supplementary adavits sworn by the 3rd defendant’s counsel led herein on June 6, 2022 and the 1st defendant’s counsel led on June 7, 2022, they both attached a certicate of death indicating that the 1st defendant – Hussein Hassan Husein indeed passed away on November 16, 2019 at Garissa. 8. In respect of the death of a party to a suit, order 24 of the Civil Procedure Rules provides as follows: “ 24. 1. The death of a plainti or defendant shall not cause the suit to abate if the cause of action survives or continues. 2. … 3. (1) Where one of two or more plaintis dies and the cause of action does not survive or continue to the surviving plainti or plaintis alone, or a sole plainti or sole surviving plainti dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plainti to be made a party and shall proceed with the suit (2) Where within one year no application made under sub-rule (1), the suit shall abate so far as the deceased plainti is concerned, and, on the application of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14514/eng@2022-11-03 2

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defendant , the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plainti. Provided the court may, for good reason on application, extend the time.” 9. In the matter before me both the 1st and the 3rd defendant have presented clear evidence of the death of the 1st defendant which as per the certicate of death exhibited as evidence occurred on November 16, 2019. That would mean that by the time this application was led the suit had clearly abated as the 1st defendant had died some two years earlier and was yet to be substituted. 10. In his plaint as further amended on September 7, 2021, the plainti urged the court to cancel the title deed for the suit property in the name of the 1st defendant and to have the same reverted to himself. He also prays for general damages for trespass and conversion of the suit properties. Other than the mention in passing at paragraph 11 of the further amended plaint to the eect that the 3rd defendant County Government wrote a letter intimating that there was no agreement between the 1st defendant and the plainti’s father in respect of the suit land, there was no other claim or prayer made by the plainti as against the 3rd defendant. 11. Arising from the foregoing it was clear that those pleadings do not reveal any reasonable cause of action as against the 3rd defendant to warrant its being enjoined as the 3rd defendant herein. 12. The upshot is that I nd merit in the motion dated December 1, 2021 and I allow the same. 13. As the 3rd defendant did not pray for costs, each party shall bear their own costs. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT NYERI THIS 3RD DAY OF NOVEMBER, 2022. In the presence of: Mr. Wamahiu for the 1st Defendant/Respondent Ms Kimunyu holding brief for Ndichu for the Applicant No appearance for Warutere for the Plainti Court assistant - Kendi ........................ J. O. OLOLA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14514/eng@2022-11-03 3

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