Mburu (Suing as the Personal Representative of the Estate of Karugu Guandai) v Waweru

3. She deposes that her late father was the allotee of the suit property which was purchased from the 2nd Defendant in the counterclaim in 1996 and he took possession upon purchase. The Plainti by way of original action had charged the suit property to the 3rd Defendant in the counterclaim. 4. She avers that by the time she was granted a limited grant of letters of Administration ad litem dated February 14, 2022, the suit had abated. 5. She deposes that the estate of the deceased ought to be granted their constitutional right to a fair hearing under Article 50 and Access to justice under Article 48 of the Constitution arguing that no prejudice would befall the Defendants which cannot be remedied by an award of costs. 6. The application is opposed by the 2nd Defendant in the counterclaim by way of grounds of opposition dated February 3, 2023, where it is contended that 10 years have gone by since the suit was led yet there has been no progress in the matter. That the Plainti in the counterclaim passed on over 2 years ago and his estate failed to take out the grant of letters of administration intestate despite being aware of this suit. The application is not opposed by the other parties herein. 7. I have considered all the issues raised herein including the submissions of the applicant. 8. This suit abated by operation of the law as against the defendant in the main suit as well as the entire counterclaim on account of the death of that defendant on February 5, 2021. Order 24 Rule 7 of the Civil Procedure Rulers provides that an abated suit may be revived if it is proved that the person applying for the revival was prevented from continuing with the suit by any sucient cause. 9. The Applicant obtained a Limited Grant of Letters of Administration Ad Litem for purposes of prosecuting the suit on February 14, 2022, over a year after the Plainti in the Counterclaim died, while the current application was led almost a year thereafter in January 2023. 10. Has the Applicant established sucient cause for failing to continue with the suit after the death of the Plainti in the counterclaim? Sucient cause was dened in Honorable Attorney General v the Law Society of Kenya & Another Civil Application No 133 of 2011 cited in Kishor Kumar Dhanji Varsani v Amolak Singh & 4 others [2016] eKLR as follows; ' Sucient cause or good cause in law means: the burden placed on a litigant usually by court, rule or order to show why a request should be granted or an action excused. (See Black’s Law Dictionary, 9th Edition page 521), sucient cause must be rational, plausible, logical, convincing, reasonable and truthful. It should not therefore be an explanation that leaves doubt in the Judges mind. The explanation should not leave unexplained gaps in the sequence of events.' 11. The Applicant does not oer any explanation for the delay herein in that can be said to constitute sucient cause. In Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others [2017] eKLR, the court of Appeal held as follows after considering an application of similar nature where sucient cause was not shown; ' We come to the conclusion that the delay was inordinate and no sucient cause was shown.' 12. One of the cardinal principles in our Constitution is 'the expeditious delivery of justice' –see Article 159 (2) (b) of the Constitution of Kenya, which in eect codies the 17th century maxim of 'Justice delayed is justice denied'. This means that if justice is not provided in a timely manner to the parties, it loses its importance and it violates the human rights of the litigants and their families. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16009/eng@2023-03-02 2

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13. In the nal analysis, I nd that the application dated January 24, 2023 is not merited. The same is hereby dismissed. Considering that the defendant in the main suit who is the plainti in the counter claim died February 5, 2021, then both suits (original claim and counterclaim) are hereby marked as abated - No orders as to costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF MARCH, 2023 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of:Waweru holding brief for Mr. Juma for the 2nd Defendant Kahara holding brief for Mr. Muriithi for Defendant in originate suit https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16009/eng@2023-03-02 3

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