Nellie Wanjiku Njuguna & 1 other v Kings Developers Limited & 2 others

deadline, internet outages delayed compliance until 14th May 2024. Mr. Macharia asserted that it is in the interest of justice that the Court orders of 12th April 2024 be varied, that the amended plaint be deemed as properly filed and for this suit to be allowed to proceed to hearing on its merits. 3. In opposition to the application, the defendants filed a replying affidavit sworn on 25th June 2024 by Mr. Sunita Patel, the Chief Financial Officer of the 1st defendant company. He averred that this suit was instituted vide a plaint dated 21st December 2015 and filed on 6th January 2016, but unfortunately, the 1st & 2nd plaintiffs passed away on 6th July 2017 and 1st June 2018, respectively. Mr. Patel stated that despite several adjournments to allow for substitution, no applications were filed leading to abatement of this suit on 31st May 2019. He stated that this suit was later revived by the Court on 1st July 2021, and personal representatives of the deceased plaintiffs’ estates were directed to file an amended plaint. 4. Mr. Patel contended that despite the foregoing, the Administrators of the estates of the deceased plaintiffs failed to file an amended plaint, thus on 2nd June 2023, the defendants filed an application seeking to have this suit dismissed for want of prosecution, but the defendants’ application was dismissed by this Court on 12th April 2024 on condition that the amended plaint be filed within 30 days from 12th April 2024, failure to which this suit would be automatically dismissed. Mr. Patel averred that as at 13th May 2024, no amended plaint had been filed and the Administrators of the estates of the deceased plaintiffs are guilty of delay and disinterest in this suit. He further averred that the instant application is a reaction to the defendants’ move to extract a decree, hence this suit should be dismissed with costs to protect the integrity of the Court process. 5. The application herein was canvassed by way of written submissions. The plaintiffs’ submissions were filed by the law firm of Ashitiva Advocates LLP on 17th September 2024, whereas the defendants’ submissions were also filed on the same day by the law firm of Majanja Luseno & Company Advocates. 6. Mr. King’ori, learned Counsel for the plaintiffs referred to the provisions of Order 50 Rule 5 of the Civil Procedure Rules, 2010, and the case of Eldoret Steel Mills Limited v Patrick Lumumba Likono [2011] eKLR, and submitted that it is in the interest of justice for the instant application to be allowed. He argued that this Court is obligated under Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act and Article 159(2)(d) of the Constitution of Kenya to prioritize the administration of justice over procedural technicalities. 7. Additionally, Counsel relied on the Court of Appeal case of Trust Bank Ltd. v Amalo Co. Ltd. [2003] 350 and stated that this Court has a duty to uphold the plaintiffs’ right to a fair hearing under Article 50(1) of the Constitution of Kenya by striving to ensure that cases are determined on their merits. Mr. King’ori submitted that the defendants had not shown any irreparable prejudice from a one-day extension or from the amended plaint being deemed as being properly filed. He contended that the estates of the deceased plaintiffs would suffer significant prejudice if this suit was dismissed. 8. Ms Musau, learned Counsel for the defendants submitted that following this Court’s Ruling delivered on 12th April 2024, and more specifically, paragraph 36 of the said Ruling, the plaintiffs’ personal representatives ought to have filed an amended plaint by 13th May 2024, failure to which the suit would stand automatically dismissed. She stated that as at 13th May 2024, the plaintiffs’ personal representatives had not complied with the Court directions, and that on 16th May 2024, the defendants shared a draft decree with the plaintiffs for approval in accordance with Order 21 Rule 8(2) of the Civil Procedure Rules, 2010. 9. Ms Musau stated that on 12th April 2024, the plaintiffs’ Counsel informed the Court that one of the deceased plaintiffs’ sons by the name Mr. Njuguna, had returned to Kenya and was willing to proceed with substitution but no evidence was presented to show any efforts made by the plaintiffs’ Counsel https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13356/eng@2025-09-18 2

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to contact the plaintiffs’ personal representatives since delivery of the Ruling of 12th April 2024. To buttress these submissions, Counsel relied on the cases of Onguto (Suing as the legal representative of the Estate of Joseph Louis Onguto (Deceased) v Abuya t/a J Louis Onguto Advocates [2023] KEHC 896 (KLR) and Soloh Worldwide Inter-enterprises v County Secretary Nairobi County & another [2015] KEHC 7329 (KLR). Analysis and Determination. 10. I have considered the application herein, the grounds on the face of it and the affidavit filed in support thereof. I have also considered the replying affidavit filed by the defendants and the written submissions by Counsel for the parties. The issue that arises for determination is whether the orders sought herein should be granted. 11. The plaintiffs seek extension of up to 31 days from 12th April 2024 to file and serve an amended plaint, and for the amended plaint filed and served on 14th May 2024 to be deemed as being properly on record. They contend that their failure to comply with this Court’s orders made on 12th April 2024 was not deliberate but as a result of a temporary loss of contact with the Administrators of the deceased plaintiffs’ estates and widespread internet outages across the country. 12. The defendants on the other hand averred that the personal representatives of the plaintiffs’ estates had repeatedly been indulged by this Court to regularize these proceedings by substituting the plaintiffs with their personal representatives and by filing an amended plaint, but had consistently failed to comply with the Court’s orders within the stipulated timelines. 13. This Court in its Ruling delivered on 12th April 2024, and specifically at paragraph 36, granted the plaintiffs’ personal representatives leave to substitute the deceased plaintiffs by filing and serving an amended plaint within 30 days from that date. This Court held as hereunder at paragraph 36 of the said Ruling In order to do substantive justice to the parties herein, I exercise my discretion by giving the plaintiffs’ personal representatives the last opportunity to substitute the plaintiffs by filing and serving an amended plaint within thirty (30) days from the date of this ruling. If the plaintiffs’ personal representative fails to comply with the said order, the suit shall stand automatically dismissed on the 31st day from the date of this ruling. 14. It is not in contest that in order to comply with this Court’s orders made on 12th April 2024, the plaintiffs’ personal representatives were required to file the amended plaint on or before 13th May 2024. The amended plaint was however filed and served on 14th May 2024, that is on the 31st day following the delivery of the Ruling of 12th April 2024. It is noteworthy that this Court in its Ruling delivered on 12th April 2024 made it clear that failure to comply with the directions set out at paragraph 36 thereof would result in the automatic dismissal of the suit on the 31st day. Consequently, this Court finds that by the time the plaintiffs’ personal representatives filed and served the amended plaint, the suit already stood dismissed. Therefore, if the plaintiffs intended to seek an extension of time to comply with this Court’s orders, such an application ought to have been made before the expiry of the 30-day period from 12th April 2024. 15. In light of the foregoing, this Court finds that the appropriate course of action for the plaintiffs would have been to first file an application seeking the reinstatement of the dismissed suit, before filing the application herein. Since the suit stood automatically dismissed on 14th May 2024, the instant application was filed in a suit that no longer existed, and as such, the application herein is not properly before this Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13356/eng@2025-09-18 3

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16. The upshot is that the plaintiffs’ application dated 20th May 2024 is hereby struck out with costs to the defendants. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 18TH DAY OF SEPTEMBER 2025. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. NJOKI MWANGI JUDGE In the presence of;Mr. Mugo for the plaintiffs/applicants Mr. Daniel Mutunga for the defendant/respondent Ms B. Wokabi – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13356/eng@2025-09-18 4

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