Paskwaline Mwendwa Kirima & another v Joanina Kiario M,kwaria

iv. That the firm of Muchomba Law Advocates be granted leave to come on record for the applicants/appellants in place of Ojwang Sombe & Co. Advocates. v. That this Honourable court be pleased to set aside, vacate and/or vary the orders made by his Honourable court on 13.07.2026 dismissing the applicants dated 10.07.2026 and the application be reinstated for prosecution. vi. That the applicants be granted leave to amend the memorandum of appeal. vii. That the costs of this application be in cause. 2. The instant application is premised on various grounds which have been highlighted in the body thereof. The grounds are: The applicants are the appointed administrators of the estate of Evageline Mukomeru Kirimadeceased; the deceased was a party to the original suit before the lower court; the deceased died before the lower court matter could be concluded; the cause of action in the lower court survived the death of the deceased; the applicants herein are now seized of the capacity to be substituted in place of the deceased; the substitution of the applicants shall enable the appeal to proceed; the substitution would facilitate the hearing and determination of the appeal on merits; and the subject application has been brought without an undue delay. Page 2 of 12

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3. Additionally, it has been posited thus: The Applicants herein had retained and instructed their previous advocate to file the application for substitution and for stay of execution; the previous advocate duly filed the application dated the 01.07.2026; however, the previous advocate failed to attend court; the application dated 01.07.2026 was dismissed for want of prosecution; the previous advocate did not inform the applicants of the status of the appeal; the previous advocate also failed to appraise the applicants’ of the status of the application; the dismissal of the previous application was as a result of the mistake/inadvertence of the previous counsel; the mistake of counsel ought not to be visited upon the applicant; and the respondent shall not suffer any prejudice/injustice. 4. The application is supported by the joint affidavit sworn by the applicants. The affidavit is dated the 27.07.2026. The deponent of the affidavit has rehashed the grounds at the foot of the application. Furthermore, the deponents have averred that following the death of the deceased, same [applicants] procured grant of letters of administration. It has been averred that the grant of letters of administration have conferred upon the applicants the capacity to be substituted in place of the deceased. 5. The respondent filed grounds of opposition and wherein same has canvassed two issues. The grounds relied upon are: The subject application is prohibited by the doctrine of res judicata; and the Page 3 of 12

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application has been overtaken by events, insofar as the impugned decree has since been executed. 6. The subject application came up for hearing today [28.09.2026] whereupon the advocates for the parties confirmed that same were ready. In addition, learned counsel sought directions as pertains to the hearing of the application. Moreover, counsel intimated that the application could be prosecuted vide oral submissions. Thereafter, the court issued directions. Suffice it to state that the application indeed proceeded for hearing. 7. Learned counsel for the applicants adopted the grounds at the foot of the application; reiterated the contents of the supporting affidavit; and thereafter highlighted three [3] key issues. The issues are: The Applicants are the duly constituted/appointed administrators of Evageline Mukomeru Kirima – deceased; the applicants are seized of the capacity to be substituted; and the substitution of the applicants shall enable the court to determine the appeal on merits. 8. In addition, learned counsel for the applicants submitted that the applicant[s] herein had previously retained an advocate and which advocate proceeded and filed the application dated the 01.07.2026. Nevertheless, it was argued that even though the previous counsel filed the said application, same [previous counsel] failed to attend court, culminating into the dismissal of the application. Be that as it may, it was contended that the dismissal of the said application arose because of the mistake and failure on the part of the previous counsel. Page 4 of 12

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9. Learned counsel for the applicant thereafter implored the court to grant the application and substitute the applicants as the appellants. Furthermore, the court was invited to set aside the orders dismissing the previous application; and to restore/reinstate same for hearing and determination on merits. 10.Learned counsel for the respondents adopted the grounds of opposition and canvassed two issues. The issues are: The instant application is prohibited/barred by the doctrine of res judicata; and the subject application has been overtaken by events. 11.Regarding the question of res judicata, learned counsel for the respondent submitted that the applicants herein had previously filed the application dated the 01.07.2026 and which application sought similar orders. It has been contended that the said application was dismissed and thus the current application does not lie. 12.With regard to the second issue, it was contended that the decree that was issued by the lower court has since been extracted and served upon the land registrar. Moreover, it was argued that what is outstanding is the survey of the suit property. According to learned counsel for the respondent, the service of the decree constitute[s] execution; and thus the prayer for stay is overtaken by events. Page 5 of 12

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13.Having reviewed the application; the grounds of opposition; and taking into consideration the oral submissions made by /on behalf of the respective parties, three key issues emerge for determination. The issues are: Whether the subject application is prohibited by the doctrine of res judicata or otherwise; whether the applicants have the requisite capacity to be substituted in place of the deceased; and whether the applicants’ have established sufficient basis to warrant the setting aside of the orders made on the 13.07.2026. 14.Regarding the first issue, I wish to point out that the applicants herein had indeed filed a previous application dated the 01.07.2026. The reliefs sought vide the said application touched on and concerned grant of an order of stay of execution of the judgment of the lower court, pending the hearing and determination of the subject appeal. For good measure, the said application was scheduled for hearing on the 13.07.2026. 15. However, when the application was called out, learned counsel for the applicants was absent. To this end, the application dated 01.07.2026 was dismissed for non-attendance. 16.I hasten to state that the said application was neither heard nor determined on merits. In this regard, I am at a loss as to how the plea/doctrine of res judicata, can be raised or invoked to defeat the current application. It is common ground that the doctrine of res judicata only springs into action where the previous suit /application [whichever is the case] has been heard and determined on merits. [See the holding in the case of Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR)]. Page 6 of 12

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17.In respect of the instant matter, the previous application was never heard on merits. In any event, there is no gainsaying that the current application does not seek the same reliefs, as the ones, which were sought vide the previous application. Notably, the current application seeks inter alia, the reinstatement /restoration of the previous application, for hearing and determination on merit. 18.Without belaboring the point, it is my finding that the plea of res judicata is irrelevant and inapplicable in respect of the subject matter. Quite clearly, learned counsel for the respondent misapprehended the tenor of the doctrine of res judicata; and essentially, the elements that underpin same. 19.Moving on to the second issue, I wish to point out and highlight that the applicants herein have exhibited a copy of the amended grant of letters of administration that was issued in their favor. The amended grant of letters of administration was issued on the 07.07.2026. On the basis of the said grant of letters of administration, there is no gainsaying that the applicants are indeed seized of the requisite capacity to be substituted. [See the provisions of Sections 79 and 82 of the Law of Succession Act, Chapter 160, Laws of Kenya.] 20.Further and in any event, it is common ground that upon the death of Evageline Mukomeru Kirima [deceased], the first applicant herein obtained grant of letters ad litem. Page 7 of 12 Thereafter, the 1st applicant was

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substituted in place of the deceased in the lower court. It is the said grant of letters of administration ad litem, which enabled the 1 st Applicant to mount the subject appeal. 21.Be that as it may, a full grant was issued in favour of both the applicants and it is on the basis of the amended full grant that the applicants are now seeking substitution, in an endeavor to exercise their “corporate” capacity as joint administrators. It suffices to state that the applicants have met the threshold for substitution. 22.I now wish to turn to the last issue. The issue relates to whether the applicants have established sufficient cause to warrant the setting aside/variation of the orders made on the 13.07.2026. It has been contended that the applicants had instructed a previous counsel to file an application for stay of execution pending appeal. In addition, it was posited that the previous counsel, indeed filed an application in line with the instructions. 23.Be that as it may, the applicants have posited that despite filing the application for stay of execution pending appeal, the previous counsel failed to attend court and to prosecute the application. Moreover, it has also been asserted that the previous counsel also failed to appraise the applicants of the status of the application. In this regard, the applicant posits that the dismissal of the previous application arose because of the mistake of counsel. Page 8 of 12

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24.The applicants have implored the court to excuse the mistake of counsel and to allow the said application to be reinstated; and thereafter, to be heard and determined on merits. In particular, it has been contended that the mistake of counsel ought not to be visited upon the applicants. 25. In any event, the applicants have asserted that upon discovery of the failure by their previous counsel, same moved the court without undue delay. 26.I wish to underscore that the assertions by the applicants have not been controverted. In particular, the respondent herein did not file any replying affidavit. In the premises, I have no basis to disregard or disbelieve the assertions on behalf of the applicants. In any event, the assertions appear honest and bona fide. 27.Additionally, I wish to point out that the kind of mistake or inadvertence, which led to the dismissal of the previous application, coupled with the explanation that has been proffered, fall within the cluster of mistakes, which are excusable. 28. Moreover, it is trite that courts of law do not exist to mete out punishment or discipline upon defaulting parties. In addition, certain lapses, or inadvertence, ought not to be raised to the level of a criminal offence. On the contrary, courts of law exist to administer justice. The provisions of Article 159 [2] [a] and [d] of the Constitution, 2010, are instructive. Page 9 of 12

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29.Furthermore, I am reminded of the dicta in the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR), where the court of appeal [Per Apaloo JA] stated thus: “I think a distinguished equity judge has said: “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.” I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline. In this case, the appellants offered to pay the costs. The respondent will not agree.” 30.The words in the preceding paragraph may have been uttered decades back. However, the import and tenor thereof, holds sway to date. I beg to borrow and adopt the said words. The same apply to the subject matter with equal force. 31.In a nutshell, I am persuaded that the applicants herein have placed before the court cogent and plausible reasons, to account for the failure to attend court on the 13.07.2026, when the previous application was dismissed for non - attendance/want of prosecution. Conclusion: 32.The applicants herein sought the exercise of discretion of the court. It was incumbent upon the applicant to inter alia, account for the failure to attend court on the date when the previous application was dismissed. It suffices to underscore that the applicants have indeed tendered credible explanation. Moreover, the explanations tendered meet the threshold of equity and thus warrants condonation. Page 10 of 12

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33.Regarding the question of res judicata, I pointed out that the elements underpinning same were not established. It is common ground that a dismissal of an application or matter, for non-attendance does not provide a basis for the invocation of the doctrine of res judicata. 34.Simply put, the application beforehand is meritorious. Same deserves favourable treatment. Final orders: 35.Flowing from the analysis, the final orders that commend themselves to the court are: i. The Application dated the 03.08.2026 be and is hereby Allowed. ii. The Law Firm of Ms. Muchomba Law Advocates be and are hereby granted leave to come on record in place of the outgoing Advocates. iii. The Applicants herein be and are hereby substituted and constituted as the Appellants in their capacities as the joint administrators of Evagaline Mukomeru Kirima [deceased]. iv. The orders of the court issued on the 13.07.2026 be and are hereby set aside. v. The application dated the 01.07.2026 be and is hereby reinstated for hearing and determination on merits. Page 11 of 12

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vi. The application dated 01.07.2026 shall now be heard inter -partes on the 13.10.2026. vii. The appellants be and are hereby granted leave to amend the memorandum of appeal. viii. The amended memorandum of appeal shall be filed and served within 7 days from the date hereof. ix. The applicants shall pay throw away costs of Kshs. 15,000/= only to the advocates for the respondent. x. The costs in terms of clause [ix] shall be paid within 14 days. 36.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 28TH DAY OF SEPTEMBER, 2026 OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the presence of: Court Assistant: Zakayo . Mr. Miriti for the Applicants Mr. Kimathi Ikiara for the Respondent Page 12 of 12

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