Bii v Chepkwony

this matter/dispute. That the Application was defective and lacked merit as there was no suit to give life to. That the Plainti died on 21st June 2020 and after the Applicant obtained a Grant of Letters of Administration to the deceased Plainti’s estate on 3rd February 2021, one Kenneth Tanui had led a similar suit at the Chief Magistrate’s court over the same subject parcel of land, seeking the same relief as what had been sought in the current suit. (Reference was made to annexure “JC 2” which was a Plaint together with a copy of the Grant.) 6. That by ling a new matter upon the lapse of 1 year, the Applicant had abandoned this matter and opted to le a new subsisting suit. That that notwithstanding, the court had dismissed a similar application and the same application cannot therefore be led. 7. That it had been before the lapse of one year that he had asked the intended Plainti/Applicant, through a letter herein annexed as “JC 1," to move the court and take over the Plainti’s pending matter before the court, to which she had declined. That the application herein was not led in good faith as by ling a fresh matter after the elapse of 1 year, the intended Applicant had abandoned this suit. The Respondents/Defendants had sought for the dismissal of the application for being an abuse of the court process. 8. Subsequently, directions were taken on the 28th July 2022 that the application be disposed of by way of written submissions. Applicant’s Submissions. 9. In support of her application the Applicant submitted that she was the deceased Plainti’s widow, next of kin and administrator Ad-litem. That the Plainti died on the 21st June 2020 as per the annexed death certicate, but the cause of action subsists. That the slight delay in the ling of the relevant application was due to family wrangles, Covid -19 issues including loss of income, and closure of courts. That she applied for the letters of administration Ad-litem on the 26th January, 2021 and obtained the same on 3rd February 2021, as herein annexed. That the application was led in good faith and ought to be allowed pursuant to the provisions of Order 24 Rule 1 and 3 (sic) 10. That Order 24(sic) was clear that the death of a party to a suit shall not cause the suit to abate if the cause of action survived or continued. That Order 24 Rule 3(2) was clear that where no application was made under Order 24(1), the suit shall abate as far as the deceased/Plainti is concerned provided that the court may for a good reason, on application extend the time. The Applicant pleaded that though the suit had abated, the cause of action subsists and due to the reasons aforementioned, that the Honorable Court nds that the same were good reasons to extend time. That the delay was not inordinate and intentional but was excusable. 11. That the application was entirely upon the discretion of the Honorable Court upon nding that there was sucient cause shown which sucient cause should be construed to advance substantive justice. 12. That the deceased Plainti had led his suit way back on the 26th June, 2018 against the Defendants and due to the unavoidable circumstances as enumerated above, parties ought to be reasonably accommodated so that the Respondents should not in any feasible manner take advantage of the demise of the Plainti, and the matter can be determination on merit. 13. That as was held in Nakuru HC ELC No.253 of 2013 where an Applicant seeks to be substituted in place of the Plainti where a suit has abated, such an Applicant must as a rst step, seek to have the abated suit revived and then seek to be substituted. That it was usually proper and in order in the same application to seek an order for revival of the suit, for leave to bring the application for substitution out of time and for an order of substitution in that sequence. Reliance to buttress their submission https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16637/eng@2023-03-23 2

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was placed on Issa Masudi Mwabumba vs. Alice K. Mutunga & 4 Others 2012 eKLR and in the case of Gladys N. Mwaura vs. Daniel Kariuki (2018) eKLR. 14. That land matters were emotive and required proper ventilation of facts in court and therefore the Honorable Court should allow the application and proceed to issue directions on the hearing and determination of the appeal (sic) with costs be in the cause. Defendant’s submissions. 15. The Defendant gave a background of the matter in issue and in opposition to the Applicant’s application to the eect that he had requested the Applicant vide a Notice herein annexed as “JC 2” and dated 14th September 202(sic) to come on board in this proceeding but she had declined despite service. 16. That the current application has now been led after a new suit was led after the matter had abated. That there was no suit to be revived or an Applicant to substitute the deceased Plainti. 17. That pursuant to the provisions of Order 24 Rule (2) (sic) after a suit has abated, that it was the discretion of the court, for good reason, on application to extend time. That the Applicant had not come to court with clean hands and neither had she given/adduced grounds which contained good reasons or justiable reasons for the court to exercise discretion in her favour. That the Applicant had concealed the fact that she had been summoned by the Defendant/Respondent before the elapse of one (1) year to join the proceedings but she had declined and therefore she could not now say that she was not aware of the existence of this suit. 18. That before this application was led, the Applicant jointly with one Kenneth Kipkoech Tanui had obtained Grant of Letters of Administration intestate and proceeded to le a fresh matter at the Kericho Chief Magistrate’s Court being CMELC No. 24 of 2022 which is subsisting and wherein the relief sought therein was the same as that which had been sought in the current suit and therefore the current application was an abuse of the court process. The inference which can be drawn with the said led new suit was that this suit had died and could not be revived. 19. That as at on 3rd February 2021, the Applicant had obtained the Letters of Grant Ad Litem but decided not to move the court before the lapse of one (1) year wherein no sucient reason had been adduced as to why she did not move the court expeditiously. 20. That the Applicant was a high school teacher, by profession and therefore well informed and aware of this suit yet she had decided to sleep on her rights and was now trying to mislead the court that there were family wrangles when she had already obtained the Limited Grant of Letters of Administration Ad Litem before the appeal (sic) abated. 21. That since there had been another suit led in the Magistrate’s court, by allowing this application, it would create duplicity of suits in which the Defendant would be answering over the same subject matter, and hence the application was misplaced and frivolous. 22. That the non-disclosure of the presence of another suit was a suppression of essential material, hence the Applicant was guilty and should not obtain advantage over the Respondent in the proceedings. That the Applicant had not demonstrated and/or given a good reason for the extension of time after the lapse of one (1) year and the application should be dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16637/eng@2023-03-23 3

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Determination. 23. I have considered the pleadings and submissions made by both the Applicant herein and the Defendant. The issue is whether the suit by the deceased Plainti should be revived, and if so, whether the deceased Plainti should be substituted out of time. 24. Order 24 Rule 3 of the Civil Procedure Rules provides for the applicable procedure upon the death of one of several Plaintis or of a sole Plainti as follows: (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. 25. It is clear from the said provisions that a suit abates by operation of the law when no substitution is made within one year on the death of a Plainti. However, Order 24 Rule 7(2) of the Civil Procedure Rules gives the court discretion to revive an abated suit if there is sucient proof that the Applicant was prevented by any sucient cause from continuing the suit. The Court of Appeal in the case of The Hon. Attorney General v The Law Society of Kenya & Another – Civil Appeal (Application) No. 133 of 2011 observed as follows as to the meaning of sucient cause: “ 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 251. Sucient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubt in a Judge’s mind. The explanation should not leave unexplained gaps in the sequence of events.” 26. In the instant application, the intended Plainti averred that following the death of the original Plainti, who was her husband, on the 21st June 2020 the ‘’slight’’ delay in the ling of the relevant application was due to family wrangles, Covid -19 issues including loss of income, and closure of courts. That she had however applied for the Letters of Administration Ad-litem on the 26th January, 2021 wherein she had obtained the same on 3rd February, 2021. That the application was led in good faith and therefore ought to be allowed. 27. I nd the Plainti has not given a good reason to revive the suit since it is clear that the Letters of Administration Ad-litem were issued on the 3rd February, 2021 in the Chief Magistrates Court Kericho in Ad Litem E022 of 2021, which was more than 6 months before the suit fell due for abatement. I have also gained sight of the a letter dated the 28th August 2020 by the Defendant’s Counsel asking the Applicant to take out Letters of Administration in respect of the Plainti deceased’s estate, wherein no action had been taken. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16637/eng@2023-03-23 4

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28. Of interest to note is that the Applicant herein again obtained other letters of Administration on the 10th January 2022 in the High Court Kericho in Succession Cause No. E043 of 2021, jointly with another by the name of Kenneth Kipkoech Tanui. 29. I also considered the prayers that the original Plainti had sought in his Plaint to wit that eviction orders do issue against the Defendant, his servants, employees and agents from land parcel No. Kericho Municipality Block 5/701. In the suit led before the Kericho Chief Magistrate being CM ELC No. 024 of 2022, the Applicant’s joint administrator has again sought the same orders against the Defendant herein. 30. I nd that the Applicant is on a shing expedition to nd a court that will deliver orders that would be suitable to her. This suit abated on the 21st June 2021 and was pronounced as such by the court on the 16th December 2021. The Applicant having knowledge of the court’s pronouncement and in cohort with her co-administrator then led a fresh suit in the Magistrates court, via a Plaint dated 17th March 2022, on the 6th March 2022 seeking the same orders over the same parcel of land against the same Defendant. If this is not an abuse of the court process and gross misconduct then I don’t know what is. 31. The revival of an abated suit according to the provisions of Order 24 Rule 7(2) of the Civil Procedure Rules is at the court’s discretion and an Applicant seeking such discretion must come to court with a good and sucient cause which must be rational, plausible, logical, convincing, reasonable and truthful and should not be an explanation that leaves doubt in a judge’s mind. Above all, the said Applicant must come to court with clean hands as it is trite that those who come to equity must do equity. 32. In the present instance, I nd that the Applicant has cunningly come to court with soiled hands and is therefore undeserving of the court’s discretion. Besides there is an existing matter before the Chief Magistrates Court being Kericho Chief Magistrate being CM ELC No. 024 of 2022 and therefore by allowing this application, a similar suit in this court would be oending the provisions of Section 6 of the Civil Procedure Act which provides as follows: ‘No Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.’ 33. This, in my view, this not a good case to revive the Plainti’s suit and also to substitute the Plainti with the Applicant herein. To this eect thereof the Applicant’s application dated 2nd June 2022 is accordingly dismissed with costs. DATED AND DELIVERED VIA MICROSOFT TEAMS AT KERICHO THIS 23RD DAY OF MARCH 2023 M.C. OUNDO ENVIRONMENT & LAND – JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16637/eng@2023-03-23 5

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