REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYAHURURU CIVIL APPEAL NO.101 OF 2017 HARRISON WANJOHI WAMBUGU.......................................APPLICANT VERSUS FELISTA WAIRIMU CHEGE........................................1ST RESPONDENT PETER CHEGE NJAU...................................................2 ND RESPONDENT RULING Harrison Wanjohi Wambugu, the appellant/applicant filed the Chamber Summons dated 5/5/2017 seeking an order that the court do make Felista Wairimu Chege the only substitute in place of the 2 nd Respondent, Peter Chege Njau, her husband for the purpose of finalizing this appeal without involving anybody else. He also prays for costs of the application. The grounds upon which the application is brought are that Peter Chege is now deceased. He was the husband of the 1st respondent, Felista Wairimu Chege; that the applicant filed a Civil Case Nyahururu PMCC.274/2004 against respondents, Felista Wairimu and Peter Chege on 17/8/2006; that in August, 1997, the applicant filed a reference at the Business Premises Tribunal in TR.15/1997 against Peter Chege who was ordered not to evict the applicant from the business premises he had let to him being Plot No.3222 Ziwani Estate Nyahururu; that the applicant filed another case before Nyahururu 274/2004 in which the court rendered its judgment on 17/8/2006 dismissing the applicant’s suit. He filed the instant appeal against the respondents but the 2 nd respondent died on 27/2/2017. By this application, the applicant seeks to have Felista Wairimu Chege be substituted in place of Peter Chege Njau (2 nd respondent). The 1st respondent filed a replying affidavit opposing the application contending that the appeal relates to a claim for damages for assault; that the cause of action is personal in nature and did not survive the 2 nd respondent upon death and that she will be held liable twice if the court were to allow the application. There is no doubt that the 1st respondent was the wife of the 2 nd respondent Peter Chege, now deceased. It is also a fact that both the 1 st respondent and the deceased had been sued by the applicant in the lower court as 1 st and 2nd defendants. In PMCC.274/2004, the applicant sued both Felista W. Chege and Peter Chege (1 st and 2nd respondents). The plaint indicated that judgment was sought against the defendants jointly and severally. The concept of joint and several liability has been discussed in several decisions. In Kenya Airways Ltd v Mwaniki Gichohi, Milimani Commercial HCC.423/2002, the court said: “The concept of joint and several liability comprehends one judgment and decree against two or more persons who are liable collectively and individually to the full extent of such decree; however, double compensation is not allowed and accordingly, whatever portion of the decree is recovered against one of such defendant cannot be recovered from the other defendant.” See HCC.256/2013 Hellen Nyaga v Dr. Wachira Murage. In Dubai Electronics v Total (K) Ltd & 2 others HCC.Nairobi CC.870/98, the court stated: “Clearly therefore where you have joint liability all the tortfeasors are and each one of them is liable to settle the full liability. However, in a purely several liability each tortfeasor is only liable to settle the sum due to the tune of his liability. Where, however, the liability is joint and/or several the plaintiff has the option of either directing his claim against any one of the tortfeasors or making his claim against each one of the tortfeasors according to their individual liability. Either way he cannot recover more than the total sum decreed. However, the defendants are entitled to reimbursement from the co-defendants in the event that the plaintiff only opts to recover from one of them. That is my understanding of joint and several liability.”
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In a joint and several claim, a plaintiff cannot be allowed to benefit twice. As clearly stated in the above decisions, the plaintiff has the option to direct the claim at any one of the respondents or both. In the instant case, the 1 st respondent is still alive. In fact, the applicant contends that he found that she is the owner of the suit premises in contest. The applicant had the option of pursuing either of the respondents or one of them. In this case, the 2nd respondent having died, the applicant can pursue the 1st respondent alone. The 1st respondent has not yet obtained letters of administration in respect of the 2 nd respondent’s estate. Even if she had letters of representation, I think that it is not necessary to be made to represent the 2 nd respondent’s estate, since she is already a party to those proceedings. This application would not serve any purpose. In the end, I find that the application before the court is not merited. Even if granted the orders will serve no purpose. I hereby dismiss the application. I direct that the applicant do prepare the appeal for hearing and not delay the matter any further. Costs to be in the cause. Dated, Signed and Delivered at NYAHURURU this 24th day of May, 2019. ......................... R.P.V. Wendoh JUDGE PRESENT: Applicant – present Respondent – present Soi – Court Assistant
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