CRISPIN MAGIMA NDORIA,DICKSON MURIUKI NDORIA,NANCY WAMBUGO NYAMU &CHRISTOPHER; MWANGI NYAMU v JOSEPH MWANIKI NJAGI,RAPHEL KIMARU NJAGI & BILDAD IHIGA WAHOME [2011] KEHC 2637 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CIVIL CASE NO.107B OF 1999

CRISPIN MAGIMA NDORIA ………………...........……..1ST PLAINTIFF

DICKSON MURIUKI NDORIA…………...........………….2ND PLAINTIFF

NANCY WAMBUGO NYAMU…………..........…………...3RD PLAINTIFF

CHRISTOPHER MWANGI NYAMU…….............………...4TH PLAINTIFF

Versus

JOSEPH MWANIKI NJAGI ………….............……….…1ST  DEFENDANT

RAPHEL KIMARU NJAGI……………............……….…2ND DEFENDANT

BILDAD IHIGA WAHOME ................................................3RD DEFENDANT

RULING

This ruling is the outcome of the summons dated 3rd June 2010 in which Stephen Wahome Ihiga and Jackson Muchori Ihiga, being the 1st and 2nd Applicants herein sought  for an order to be enjoined to this suit to substitute Bildad Ihiga Wahome, the 3rd Defendant herein. The 1st Applicant swore an affidavit in support of the summons. Raphel Kimaru Njagi being the 2nd Defendant swore a replying affidavit to support the application. Dickson Muriuki Ndoria filed a replying affidavit to oppose it.

I have considered the grounds set out on the face of the summons plus the facts deponed in the affidavits filed for and against the summons. I have also taken into account the oral submissions of learned counsels appearing in this matter. It is the Applicants’ submission that Bildad Ihiga Wahome, passed away on 6th March 2000 before the conclusion of the suit. The duo indicated that they are the legal representatives of the estate of Bildad Ihiga Wahome, deceased. The 2nd Defendant indicated that it is necessary that the deceased is substituted to enable the court deal with the issues relating to partnership.

Dickson Muriuki Ndoria, the 2nd Plaintiff herein, is of the view that the application serves no useful purpose since the suit was not defended and that the application is brought after the lapse of ten (10) years from the date of death.

I have considered the material placed before me and the oral submission made by learned counsels. There is no doubt that this suit was filed way back in the month of July 1999. The summons plus the plaint were served but the Defendants did not enter any appearance nor file a defence. The suit was later heard as a formal proof and judgment in favour of the Plaintiffs was delivered on 22nd November 2002. The Defendants applied for the judgment to be set aside vide the application dated 19th June 2003. The aforesaid application was heard and dismissed on 30th September 2009. The Defendants did not disclose to this court during the hearing of the application dated 19th June 2003 that the 3rd Defendant had passed away on 6th March 2000. In fact by the time of delivery of judgment the suit as against the 3rd Defendant had abated pursuant to the provisions of Order XXVII rule 4(3) of the former Civil Procedure Rules. With respect, I agree with the submission of Mr. Wachira, learned advocate for the Plaintiffs that there is nothing pending to enable the Applicants pursue on behalf of the 3rd Defendant. By the time of making the application the suit had already been concluded. In any case the suit abated as against Bildad Ihiga, deceased a year after his demise i.e. on 7th March 2001. No application has been made to first revive the suit.

In the end I find the application dated 3rd June 2010 to be without merit. It is dismissed with costs to the Plaintiffs.

Dated and delivered this 3rd day of June 2011.

J.K. SERGON

JUDGE

In the presence of Mr. Kanyiri holding brief Macharia for Applicant, Mr. Kimunya holding brief Njoroge for 2nd Defendant and Wachira for Respondent.