Dorcas Kathini Mwanga T/A Shalom Agencies & 1 other v Samuel Wambura Mwita

3. The applicants stated that they have an arguable appeal and that they intend to file an appeal against the Trial Court’s decision in the event that their application is considered favourably. 4. They further stated that the application had been filed timeously, and that the delay in filing the intended appeal was not deliberate but was occasioned by the delay by the Court’s Registry in availing a certified copy of the Ruling and typed proceedings. 5. The respondent filed lengthy grounds of opposition dated 16th June 2025, to the effect that the application is fatally defective and incompetent for having been instituted against Samuel Wambura as the respondent despite the applicant’s full knowledge that the said Samuel Wambura is deceased, a fact expressly acknowledged by the applicants in their subsequent application dated 17th April 2025 filed in CMCC No. 3852 of 2019, wherein they sought a stay of execution and made reference to his demise, an application that was dismissed. 6. The respondent’s Counsel stated that under Section 82(a) of the Law of Succession Act, only the personal representative of a deceased person’s Estate may be sued on behalf of the Estate. He contended that the applicants’ failure to substitute the deceased with a proper personal representative renders the present application incurably defective, incompetent and a nullity in law. 7. It was also contended that the instant application was filed in reaction to a Notice to Show Cause dated 5th February 2025 issued in CMCC No. 3852 of 2019, before the Chief Magistrate’s Court at Milimani, and that the applicants had remained inactive and displayed no urgency in challenging the Ruling to their own application delivered on 13th October 2023, and that they only filed the present application dated 17th March 2025, seeking leave to appeal out of time after being served with a 2nd Notice to Show Cause dated 5th February 2025. 8. It was stated that the applicants had not demonstrated any good and sufficient cause to warrant the exercise of this Court’s discretion in their favour, as their explanation for the delay, purportedly awaiting certified copies of the Ruling and typed proceedings, is unsubstantiated, perfunctory and undermined by their own conduct, having failed to pursue the documents with any sustained effort beyond a single letter dated 26th October 2023, which falls below the threshold required under Section 79G of the Civil Procedure Act. 9. Counsel stated that an appeal can be filed with a Memorandum of Appeal within the prescribed time, with the Record of Appeal to follow, once copies of a certified Ruling and typed proceedings are ready. He termed the delay of one year and five months from the date of the impugned Ruling to the date of the filing of the instant application as a blatant violation of the mandatory thirty (30) day period prescribed under Section 79G of the Civil Procedure Act, and that no sufficient cause has been shown to justify such prolonged inaction. 10. Counsel then delved into arguments of the demerits of the intended appeal, and urged this Court not to grant the equitable remedy of leave to appeal out time. 11. The instant application proceeded by way of written submissions. The applicants’ submissions dated 3rd October 2025 were filed by the law firm of C.K Musyoka & Co Advocates, whereas the respondent’s submissions dated 22nd October 2025 were filed by the law firm of Olao & Rai Advocates. 12. Mr. Kalii, learned Counsel for the applicants relied on Section 79G of the Civil Procedure Act, in advancing his clients’ application for leave to appeal out of time. He urged this Court to read the said provisions together with Section 95 of the same Act and Order 50 Rule 6 of the Civil Procedure Rules, 2010. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6143/eng@2026-04-24 2

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13. He cited the case of Ainushamsi Multiple Hauliers Agencies Limited v Francis Ndegwa Karanja & another Miscellaneous Application No. 59 of 2020, which set out the elements a Court ought to consider in an application for leave to appeal out of time., being the explanation, if any, for the delay, the merits of the contemplated action and whether or not the respondent can be adequately compensated with costs for any prejudice that he may suffer as a result of any favourable exercise of discretion in favour of the applicant. 14. Mr. Kalii deposed that from the coram of the Ruling delivered on 13th October 2023, the applicants and their Counsel were not present when the Ruling was delivered. He stated that for that reason, the applicants had no way of knowing the reasons and the reasoning of the Magistrate in arriving at her decision, and they could only decide on whether or not to appeal after obtainin a copy of the Ruling, and that is the reason as to why the letter dated 20th October 2023 was written, requesting for the Ruling. 15. He attributed the delay in filing of the instant application to the delay occasioned by the Court Registry in providing a copy of the Ruling and typed proceedings. He referred to subsequent follow ups made on 10th January 2024 and 10th February 2025, in efforts to obtain the said documents. 16. As to the arguability of the intended appeal, Mr. Kalii relied the decisions made by Courts in Kenya Commercial Bank v Nicholas Ombija [2009] eKLR, and Stanley Kangethe Kinyanjui v Tony Ketter & 5 others [2013] eKLR. Counsel submitted that one of the applicants’ grounds of appeal is on the right to be heard, which falls under the constitutional right to fair trial, which is a non-derogable right. 17. Mr. Kalii challenged the applicants’ grounds of opposition which he contended, contain factual issues which should have been contained in an affidavit. He cited the case of Peter O. Nyakundi & 68 others v Principal Secretary, State Department of Planning, Ministry of Devolution & Planning & another [2016] eKLR, on the consequences of failing to file a replying affidavit. 18. Counsel contended that by failing to file a replying affidavit herein, the respondent has not shown that he would suffer prejudice if leave to appeal was granted, and additionally, that the averments made by the applicants on their reasons for delay in filing an appeal and that they have an arguable appeal have not been refuted, since those are matters that cannot be addressed by grounds of opposition. 19. On his part, Mr. Olao, learned Counsel for the respondent expounded on the grounds of opposition raised in regard to the application herein having been filed against a dead person, that is Samuel Wambura Mwita, who died after formal proof hearing on 1st February 2021, in the lower Court case - Milimani CMCC No. 3852 of 2019 - Samuel Wambura Mwita versus Dorcas Kathini Mwanga & Festus Munyoki Munyithya. 20. Counsel submitted that it is settled law that a suit cannot be commenced in the name of a person who is deceased as at the date of filing of the suit, any such suit if filed, becomes a nullity and is of no consequence. He relied on the case of Latifa Yakub & 4 others v Shamshudin M. Kassam [2006] KEHC 1217 (KLR), where the Court cited with approval, the case of Pathak v Mrekwe (1964) EA 24. He also relied on the case of Mohamed Abushiri Mkullu v Suleiman Abdala Hassan [2012] KEHC 2337 (KLR). 21. Mr. Olao stated that the present application was filed on 18th March 2025, long after the decree holder in CMCC No. 3852 of 2019 had died, and it was incumbent upon the applicants to file the suit against the legal representative of the Estate of the said decree holder. He contended that the application dated 17th March 2025 is fatally and incurably defective, and that the proceedings herein are a nullity having been filed against a dead person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6143/eng@2026-04-24 3

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22. The above notwithstanding, Mr. Olao submitted that if this Court finds that the application is competent, the orders being sought in the instant application are discretionary in nature, meaning that the said powers must be exercised judiciously. He cited the case of Salat v Independent Electoral & Boundaries Commissions & 7 others (Application No.16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling), on the principles to be considered in an application for leave to appeal out of time. 23. In response to the submissions made by the applicants that they and their Advocates did not attend Court for delivery of the Ruling on 13th October 2023, Counsel stated that the said Ruling was delivered in an application filed by the applicants seeking to set aside a default Judgment in order to be heard. He asserted that it was upon the applicants to follow up on the said Ruling, having already been exposed to the risk of not being heard, but they did not do so despite asking for a copy of the Ruling on 26th October 2023. 24. Mr. Olao asserted that the applicants waited until 11th February 2025 to make a further follow up, having been woken up by Notice to Show Cause why they should not be arrested and committed to civil jail. He stated that the applicants should stop blaming the Court Registry, for suggesting that it took two (2) years for a Ruling to be typed is to reach for the straws. He contended that the applicants had not provided any other explanation that would reasonably provide an excuse for the delay. He prayed for the application to be dismissed with costs to the respondent. Analysis and Determination. 25. Having read the application and its supporting affidavit, the grounds of opposition filed by the respondent as well as the written submissions by Counsel for the parties, the issue for determination is if leave should be granted to the applicants to file their appeal out of time. 26. I do agree with the applicants’ Counsel that since no replying affidavit was filed to oppose the instant application, factual issues contained in the applicants’ affidavit, remain uncontroverted. See the case of Peter O. Nyakundi & 68 others v Principal Secretary, State Department of Planning, Ministry of Devolution & Planning & another (supra), on the repercussions of failing to file a replying affidavit. The foregoing notwithstanding, the issue of whether the instant application is properly before me as the respondent is deceased and was not substituted by his legal representative in the instant application, as raised in the respondent’s grounds of opposition, is however a legal issue worthy of this Court’s consideration. It is however evident that the applicants did not address the said issue at all in their written submissions. 27. From the submissions made by the respondent’s Counsel, the suit in the lower Court was filed by the deceased respondent. He was as such the plaintiff in Milimani CMCC No. 3852 of 2019, and he emerged successful in the lower Court matter, but he subsequently passed away. Since the respondent only filed grounds of opposition and no replying affidavit, no disclosure has however been made as to whether the deceased was substituted with his legal representative. 28. The provisions that address the issue of substitution of parties is Order 24 Rule 3 of the Civil Procedure Rules, 2010, which states as follows- (1) Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6143/eng@2026-04-24 4

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representative of the deceased plaintiff 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 plaintiff 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 plaintiff: Provided the court may, for good reason on application, extend the time. 29. Order 24 Rule 7(2) of the Civil Procedure Rules, 2010, provides as followsThe plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the trustee or official receiver in the case of a bankrupt plaintiff 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 sufficient 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. 30. On the other hand, Order 24 Rule 9 of the Civil Procedure Rules provides thusIn the application of this Order to appeals, so far as may be, the word plaintiff shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal. 31. Mr. Olao Advocate, for the respondent, submitted that the applicants failed to substitute the deceased respondent, as the instant application still bears his name. I have noted that in the citation of the grounds of opposition, Mr. Olao inserted the name of Joyce Kareha Mwita (Administrator to the Estate of the late Samuel Wambura Mwita). In his submissions, although he blamed the applicants for non-substitution of the late respondent, I have noted that the said person was his client. That being the case, the onus was on the legal representative of the deceased respondent to move the lower Court when the numerous applications mentioned by the respondent’s Counsel were ongoing, for the substitution of the deceased respondent, with his legal representative. 32. From the outset, it was not the applicants’ duty to apply for substitution of the deceased respondent, as has been suggested by Mr. Olao Advocate, who was representing the said respondent. Mr. Olao now seems to have instructions to represent the legal representative of the deceased’s Estate. He should as such not blame the applicants, when the blame falls squarely on the part of the deceased’s legal representative, who needs to put her house in order, and if she fails to do so, then the applicants can move in to have the deceased respondent substituted. 33. The respondent’s Counsel has no powers to amend the application filed by the applicants at will, by deleting the name of the respondent named in the instant application, and substituting the said name with that of the deceased’s legal representative, without first seeking leave of the Court for substitution of the deceased respondent. If substitution was done in the lower Court, no information to that effect was forthcoming, as no replying affidavit was filed in opposition to the instant application. In the circumstances, this Court can only make its decision based on the supporting affidavit by the applicants, and on the scanty information available from the respondent’s Advocate, in the grounds of opposition, but only limited to issues of law. 34. Further, in accordance with the provisions of Order 24 Rule 3(2) of the Civil Procedure Rules, 2010, if the legal representative of the deceased respondent did not apply for substitution within 1 year of the respondent’s death, then the suit which he had filed abated, which would mean that there is no subsisting suit in the lower Court, which would in turn mean that none of the parties herein can move this Court for any orders. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6143/eng@2026-04-24 5

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35. As I have earlier stated in this Ruling, there is lack of clarity from Mr. Olao Advocate if at all the legal representative of the deceased respondent ever applied for substitution. 26. Since it is not disputed that the respondent against whom the instant application has been filed is dead, I have no jurisdiction to proceed to consider the application for leave to appeal out of time on its merits. 27. The legal representative of the deceased respondent should put her house in order, and if she fails to do so, the applicants are at liberty to do what their Advocates may advise them to, otherwise the parties to the application herein, and even in the matter before the lower Court will be chasing a mirage. 28. The orders that commend themselves to me is to strike out the application herein, for being fatally defective. Each party shall bear its own costs, as they failed in different ways to put their respective houses in order. It is so ordered. DATED, SIGNED AND DELIVERED AT KIAMBU ON THIS 24TH DAY OF APRIL 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. NJOKI MWANGI JUDGE In the presence of:Mr. Kalii for the applicants Ms Munene h/b for Mr. Olao for the respondent Mr. Muthomi – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6143/eng@2026-04-24 6

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