Iraki & another v Ndung'u & another

the green card, JWN3 was annexed to show the aforesaid transfers. That the suit as currently contained in JWN1, copy of the amended plaint dated 24/2/2022 is fatally defective; discloses no cause of action and an abuse of Court process hence the Application. 4. The Application is opposed by the 1st Plainti only. 5. The 1st Plainti swore her Replying Adavit on 27/10/2022. Conceding the 2nd Plainti’s registration as the suit land owner and his subsequent death. She averred that she was the 1st Plainti’s wife and that they built their matrimonial home on the suit land. That she has been adviced by her Counsel that she has the requisite locus stand by virtue of marriage and benecial rights of the matrimonial home. That the issue of determination of her proprietary and benecial rights can only be determined at the hearing of the suit; the preliminary objection has been raised after close of pleadings and that the issue of abatement of suit only arises in the case of a sole Plainti. She urged the Court to strike out the Application with costs but if persuaded otherwise, the Court be pleased to extend time for the 2nd Plainti’s substitution since she has already obtained a Limited grant of administration ad litem. 6. On 1/11/2022, parties took directions to canvass the Application by way of written submissions. 7. On behalf of the 2nd Defendant, the rm of Wamiti Njagi & Co. Advocates led submissions dated 24/11/2022. It was submitted that the 2nd Plainti as registered as the suit land owner on 27/5/1996 by way of transmission after succession proceedings and therefore it is not true that the Plaintis owned the suit land in 1992 as deponed by the 1st Plainti. That the 1st Plainti has never applied to substitute the 2nd Plainti despite amending her plaint twice since the death of the 2nd Plainti. Accordingly, that she lacks the requisite locus standi as a mere benecial owner and having failed to substitute her husband as his legal representative, the cause of action herein collapses in light of order 24 rules 3, 5 and 7 Civil Procedure Rules. On the meaning of locus standi, reliance was placed on various authorities including Trouistik Union International & Anor vs Jane Mbeyu (2008) and Alfred Njau & Others Vs City Council of Nairobi (1982-88) both cited in Beatrice Wambui Kiarie vs Beatrice Wambui Kiarie (sic) & 9 Others [2018] eKLR. 8. The law rm of Muhuhu & Co. Advocates led the 1st Plainti’s submissions dated 24/11/2022. The 1st Plainti submitted that striking out a suit is a draconian step that should be employed in the clearest of cases and only if the suit is beyond redemption. That there are factual matters regarding the 1st Plainti’s benecial rights as a spouse that can only be determined at the hearing. That it is trite that a suit can only abate where no application for substitution is made within one year but that was not the scenario herein as the cause of action survives through the 1st Plainti by dint of section 2(1) of the Law Reform Act. She relied on the cases of Karl Wehner Claasen Vs Commissioner of Lands & 4 Others [2019] eKLR and Khelef Khalifa El-Busaidy Vs Commissioner of Lands & 2 others [2002] eKLR. Analysis & Determination 9. The singular issue for determination is whether the application is merited. 10. The legal provisions governing abatement of suits are anchored in order 24 rules 1,2,3 and 5 Civil Procedure Rules that; “ https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16424/eng@2023-03-16 2

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“ 1. No abatement by party’s death if right survives [order 24, rule 1.] (1) 2. Procedure where one of several plaintis or defendants dies and right to sue survives [order 24, rule 2.] (2) 3. The death of a plainti or defendant shall not cause the suit to abate if the cause of action survives or continues. Where there are more Plaintis or Defendants than one, and any one of them dies, and where the cause of action survives or continues to the surviving Plainti or Plaintis alone or against the surviving Defendant or Defendants alone, the Court shall cause an entry to that eect to be made on the record, and the suit shall proceed at the instance of the surviving Plainti or Plaintis, or against the surviving Defendant or Defendants. Procedure in case of death of one of several Plaintis or of sole Plainti [order 24, rule 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 is made under subrule (1), the suit shall abate so far as the deceased Plainti is concerned, and, on the application of the Defendant, the Court may award to him 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. 4. Determination of question as to legal representative [order 24, rule 5.] (5) 11. Where a question arises as to whether any person is or is not the legal representative of a deceased Plainti, or a deceased Defendant, such question shall be determined by the Court.” The 2nd defendant contends that the 2nd plainti’s cause of action as instituted vide an amended plaint dated 21/7/2022 has abated due to the 2nd Plainti’s demise on 13/4/2021 and no substitution has been sought as at 14/4/2022. Copy of the Death Certicate is annexed as JWN 2 to buttress this position which in any event has been conceded by his wife, the 1st Plainti at para.3 of her Replying https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16424/eng@2023-03-16 3

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Adavit. However, the 1st Plainti holds a contrary view that the cause of action has not abated because she is agitating the suit as the 2nd Plainti’s spouse with benecial rights over the suit land which she avers is matrimonial property. 12. Has the 2nd Plainti’s suit abated by operation of law? The answer is in the armative there being no application within one year of his death that is proven by way of the Death Certicate. The question that arises for determination is whether that abatement notwithstanding, the cause of action survived the deceased in favor of the 1st Plainti? 13. The Black’s Law Dictionary 10th edition denes a cause of action as; “ A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in Court from another person.” 14. Further Mr. Justice Waki J.A in the Court of Appeal case of Attorney General & Another Vs Andrew Maina Githinji & Another [2016] eKLR held that, “ A cause of action is an act on the part of the Defendant, which gives the plainti his cause of complaint.” 15. At para.4 of her Replying adavit, the 1st Plainti deponed“ That the suit property was registered under the name of the 2nd Plainti but that we built our matrimonial home on that parcel of land in 1992, where we both retired and carried out subsistence farmimg and built temporary mabati rooms for renting an extra income’. No evidence was adduced to support this averment and which ownership the 2nd Defendant has refuted vide JWN3 – copy of green card that the 2nd Plainti was registered as the suit land owner on 27/5/1996. 16. Further in Ground ‘d’ of his motion, the 2nd Defendant stated that the 2nd Plainti during his lifetime transferred the suit land to the 1st Defendant who is also alleged to be the 2nd Plainti’s wife too. JWN3 shows that the 1st Defendant was registered as the owner of suit land on 5/7/2010 before transferring it to the 2nd Defendant one year later on 6/7/2011. All these transactions took place in the lifetime of the 2nd Plainti, as is alleged. 17. Notably, the 1st Plainti avowed that if the Court was persuaded to allow the Application, it be pleased to grant the extension of time to substitute the 2nd Plainti since she has already been issued Limited Letters of Administration Ad Litem. However, no such Letters of Administration have been exhibited before this Court. Besides such substitution can only be preceded by revival of the now abated 2nd Plainti’s suit. 18. There is another reason why the 1st Plainti’s alleged cause of action fails. In the further amended plaint dated 21/7/2022, leave to amend the earlier plaint was granted by this Hon. Court on 18/5/2022 over a year after the 2nd Plainti’s demise but at Para. 2 thereof the 1st Plainti pleaded that she has brought the suit on her behalf as the 2nd Plainti’s wife who is currently ailing. As already enumerated above the fact of the 2nd Plainti’s demise has been proven and the averment in para.2 is thus untrue and misleading. 19. The totality of the foregoing is that the Application is merited and the same be allowed with costs to 2nd Defendant/Applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16424/eng@2023-03-16 4

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DELIVERED, DATED AND SIGNED AT THIKA THIS 16TH DAY OF MARCH, 2023 VIA MICROSOFT TEAMS. J G KEMEI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16424/eng@2023-03-16 5

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