keelc-2024-00907

RULING (In respect of the Plaintifis’ Application dated 17th November, 2023 seeking to substitute the 1st Plaintifi who died on 21st June 2018) Background 1. This ruling is in respect of the Plaintifis’ application dated 17th November, 2023 seeking for orders that: a. Spent b. The Applicant Florence Wairimu Kibe the wife of the 1st Plaintifi (deceased) be granted leave to substitute Edward Michar Kibe (1st Plaintifi (deceased)) with herself Florence Wairimu Kibe (Proposed 1st Plaintifi) as the 1st Plaintifi in this matter due to the unfortunate passing of the original Plaintifi, and to amend all Court documents and records accordingly. c. This Honourable Court be pleased to grant the 1st, 3rd and 5th Plaintifis/Applicants leave to file an amended Plaint and additional necessary replies thereto, in consideration of the exceptional circumstances surrounding the substitution of the Plaintifi. d. This Honourable Court be pleased to grant the said Applicants leave to file further, supplementary or other witness statements, list of documents and copies thereof. e. The costs of this Application be provided for. f. Any other or further orders as this Honourable court will deem it fit to grant. 2. The application is premised on the grounds on the face of it and further supported by the Supporting Afidavit of Grace Mumbi Kanyi, the 5th Plaintifi herein, deponed on the 17th November, 2023, on her own behalf and that of the1st and 3rd Plaintifis. The deponent avers that the 1st Plaintifi, Edward Michar Kibe, died on 21st June, 2018 hence the need to be substituted. She avers that the Letters of Administration in respect of the 1st Plaintifi were issued to Florence Wairimu Kibe, his widow, on 26th November, 2019 in the Kiambu Succession Cause No. 311 of 2019. 3. She states that it is only after the current Advocates took over the matter that it became apparent that certain pertinent issues and claims were omitted from the original pleadings due to the lack of diligence and oversight by the former advocate. 4. The deponent states that the amendment is intended at ensuring that all relevant claims and defences are properly presented before the court for the proper and just resolution of the dispute. 5. The deponent asserts that the application for substitution and amendment is made in good faith and in the interest of justice. She urged the court to allow the application so that the issues raised herein may be determined on merit. 6. Counsel for the 1st, 2nd, 3rd and 4th Defendants informed the court that they will be opposing the application. However, despite being granted adequate time to file their responses to the application, none was filed. 7. There was no appearance for the 5th Defendant despite service. The 6th, 7th, 8th and 9th Defendants’ Counsel on the other hand stated that they would not be opposing the application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/907/eng@2024-02-20 2

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Court’s Directions 8. The Court directed that the application be dispensed with by way of written submissions. The Plaintifis/Applicants’ submissions are dated 13th February, 2024. The 1st to 4th Defendants’/ Respondents’ submissions are dated 16th February, 2024. The 1st – 4th Defendants’ submissions were limited to issues of law since they had not filed a replying afidavit in answer to the application under consideration. Issues for determination 9. I have considered the application and submissions filed herein. The issues for determination in this matter are: a. Whether the order for substitution of the 1st Plaintifi with his legal representative should be allowed; and b. Subject to the finding in (a) above, whether the Plaintifis should be granted leave to amend the Plaint pursuant to the substitution. Analysis and determination A. Whether the order for substitution of the 1st Plaintifi with his legal representative should be allowed 10. Order 24 of the Civil Procedure Rules provides as follows: “ 1. The death of a plaintifi or defendant shall not cause the suit to abate if the cause of action survives or continues. 2. Where there are more plaintifis or plaintifis alone or against the surviving defendant or defendants alone, the court shall cause an entry to that efiect to be made on the record, and the suit shall proceed at the instance of the surviving plaintifi or defendant or defendants. 3 (1). Where one of two or more plaintifis dies and the cause of action does not survive or continue to the surviving plaintifi or plaintifis alone, or a sole surviving plaintifi 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 plaintifi to be made a party and shall proceed with the suit. 2. Where within one year no application is made under sub rule (1), the suit shall abate so far as deceased plaintifi 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 plaintifi. 4 ……… 5. Where a question arises as to whether any person is or is not the legal representative of a deceased Plaintifi, or a deceased defendant, such question shall be determined by the court. 6. ……. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/907/eng@2024-02-20 3

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7 (1) Where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action. (2) 11. The plaintifi or the person claiming to be the legal representative of a deceased plaintifi or the trustee or oficial receiver in the case of a bankrupt plaintifi may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, if it is proved that he was prevented by any suficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit. In the case of Said Sweilem Gheithan Saanum –vs- Commissioner of Lands (being sued through the Attorney General) & 5 Others (2015) eKLR, the Court of Appeal explained the provisions of Order 24 of the Civil Procedure as follows: “ There are three stages according to these provisions. As a general rule the death of a plaintifi does not cause the suit to abate if the cause of action survives. But within such time as the court may in its discretion for “good reason” determine, an application must be made for the legal representative of the deceased plaintifi to be made a party. The “good reason” therefore relates to application for extension of time to join the plaintifi’s legal representative to the suit. Secondly, if no such application is made within one year or within the time extended by leave of the court, the suit shall abate. Where a suit abates no fresh suit can be brought on the same cause of action. Thirdly, the legal representative of the deceased plaintifi may apply for the abated suit to be revived after satisfying the court he was prevented by “suficient cause” from continuing with the suit. The efiect of an abated suit is that it ceases to exist in the eye of the law. The abatement takes place on its own force by passage of time, a legal consequence which fiows from the omission to take the necessary steps within one year to implead the legal representative of the deceased plaintifi.” 12. From the foregoing, it is clear that a suit abates by operation of law after one year following the death of the plaintifi where no application for substitution is made within one year. That means that no order is required to declare the suit abated. 13. In this case, there is no dispute that the 1st Plaintifi died on 21st June, 2018. His Certificate of Death is annexed to the supporting afidavit. There is also no dispute that no application for substitution of the deceased 1st Plaintifi was filed within one year after his death. Therefore, by application of law, the suit by the 1st Plaintifi abated one year thereafter. 14. In Kenya Farmers’ Cooperative Union Ltd. –vs- Charles Murgor (deceased) t/a Kiptabei Coffee Estate (2005) eKLR, the Court held that; “ …a Court of law has no jurisdiction to Order for substitution where the suit has already abated by operation of law nor to hear and determine a suit that has already abated by operation of law.” 15. I agree with the above court’s pronouncement being the proper interpretation of the law. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/907/eng@2024-02-20 4

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B. Subject to the finding in (a) above, whether the Plaintifis should be granted leave to amend the Plaint pursuant to the substitution. 16. The second issue was dependent on the findings on the first issue. The court having declined to allow the substitution of the 1st Plaintifi as sought, this second issue automatically fails. 17. Consequently, the application herein dated 17th November 2023 has no merits and is hereby dismissed with costs to the 1st – 4th Defendants. It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THE 20TH DAY OF FEBRUARY 2024. M.D. MWANGI JUDGE In the virtual presence of: Mr. Keyonzo for the 8th & 9th Defendant Mr. Omach holding brief for Mr. Ochwo for the 1st – 4th Defendants No appearance for the Plaintifis No appearance for the 6th & 7th Defendants No appearance for the 5th Defendant Court Assistant: Yvette M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/907/eng@2024-02-20 5

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