Fedalis Mang’uu Mwikya & Queen Ndee Muendo (being the legal representatives of Mwikya Mang’uu Kiseu alias Mwikya Mang’uu-Deceased) v Marshall Kivesi [2018] KEELC 176 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MAKUENI

ELC CASE  NO. 136 OF  2017

MWIKYA MANG’UU(DECEASED)....................................PLAINTIFF

VERSUS

MARSHALL KIVESI.............................DEFENDANT/RESPONDENT

FEDALIS MANG’UU MWIKYA.................................1ST APPLICANT

QUEEN NDEE MUENDO (being   the legal

representatives of MWIKYA MANG’UU

KISEU alias MWIKYA MANG’UU-DECEASED)....2ND APPLICANT

RULING

1) What   is before   court   for ruling is the notice of motion application dated 19th February, 2018 and filed in court on even date.  It is expressed  to be brought  under order 24 Rules 1,2 and  3, order  51 Rule  1 of the Civil Procedure Rules and all other enabling   provisions  of the law for orders  that:-

1. That this suit be revived.

2. That, leave do issue to the Applicants to substitute Mwikya Mang’uu Kiseu alias Mwikya Mang’uu –Deceased with  his legal representatives Fedalis Mang’uu Mwikya and   Queen  Ndee Muendo.

3. That costs of this application be in the cause.

2) It  is predicated on the grounds  on its face and  is supported by the  affidavit of Fedalis Mang’uu  Mwikya, the first Applicant  herein , sworn on his own  behalf  as well as with the authority of Queen Ndee Muendo, the second  Applicant.

3) Marshal Kivesi,  the  Defendant/Respondent herein, has opposed the application vide his replying affidavit sworn  at Machakos  on the  28th June, 2018 and filed in June, 2018 and filed in court on the 29th June, 2018.

4) The court directed   that the application be disposed off by way of written submission which direction the parties have since complied with.

5) In their grounds upon which the application  is predicated on the  Applicants’ have  stated;-

i.  That  the Plaintiff, Mwikya Mang’uu  Kiseu  alias  Mwikya Mang’uu  died  on 6/6/2015 and as such this suit abated   by operation  of law on 7/6/2016.

ii. That the Applicants have since obtained a limited grant of letter of administration ad litem limited to the purpose of prosecution this suit, Mkaueni Principal Magistrate’s Succession Cause No.  27 of 2012 and Machakos Succession Cause no.  56 of 2012.

iii. That, failure to substitute on time was not intentional but caused by factors beyond the Applicants’ control.

iv. That, there is need for substitution to enable the Applicants prosecute the current suit.

v. That it is in the interest of justice to grant the orders sought.

vi. That the Respondent shall suffer  no prejudice if the orders sought  are granted.

6) In paragraphs   2  and  3 of their  supporting affidavit , the first Applicant has  deposed that Mwikya Mang’uu Kiseu alias  Mwikya  Mang’uu  died on 6th June, 2015.  That  the two Applicants  subsequently filed  Machakos  Succession Cause  no. 61 of 2016 to petition for  a limited  grant of letters of administration ad litem for  purposes of prosecuting  this suit  among others .The first Applicant  further deposed in paragraphs 4  and  6 of the affidavit that the limited  grant that was subsequently  issued by the Chief  Magistrate’s  court had errors  which required  amendment and that this process  was lengthy. He went on to depose that the delay to procure the amendment was not due to their fault.

7) The Respondent  in paragraphs 3,4,5,6 and 7 of  his  replying  affidavit, deposed   that the application is baseless, frivolous  and an abuse of the court process, that  Mwikya Mang’uu died on 6th June , 2015 that it is  over 2 years and 11  months since the latter died, that he has been informed by is  advocates on record which  information  he believes  to be true that a suit abates after one year on the death of either party if no application for substitution is made  and that   the suit  herein  abated on 7th June, 2018 and that there is no suit upon which the Applicants can be  substituted as  parties.

8) In his submissions, the Applicants’ counsel cited order 24 rule 1 of the Civil Procedure Rules as the applicable law in this application. The  aforementioned rule provides as follows:-

“Order 24(1).  The – death of a Plaintiff or Defendant shall not cause the suit to abate if the cause of action survives or continues.

2. where there are more Plaintiffs or Defendant than one of them dies, and where the cause of action survives or  continues to the surviving  Plaintiff aloe or against the surviving Defendant or Defendants alone, the court shall cause an entry to that effect to  be made on the record  and the suit  shall proceed at the instance of the surviving  Plaintiff or Plaintiffs, or  against the surviving  defendant or Defendants.

4(i) where one of two or more Defendants dies and the cause of action does not survive or continue against the surviving Defendant or Defendant alone, or a sole Defendant  or sole surviving  Defendant dies and the cause  of action survives or continues, the  court, in an application made  in that behalf, shall cause the legal representative  of the  deceased Defendant to be made a party and shall proceed with the suit.

2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased Defendant.

3) Where within one year no application is made under sub rule (1) the suit shall abate as against the deceased Defendant.

7(i) where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action.

2) The  Plaintiff  or the person  claiming  to be the legal representative of the deceased  Plaintiff   or the trustees or official  receiver  in the case of  a bankrupt Plaintiff may apply for an order to revive   the 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 sit aside the such dismissal  upon  such terms as to costs or otherwise  as it thinks fit.”

9) The  counsel   relied on the case of Kisor   Kumar Dhanji Varsani V. Amolak Singh and 4 others [2016] eKLR which adopted with approval the definition of “sufficient cause”  that was given in the case of Honourable Attorney General V the Law Society of Kenya & Another  in Civil Applicant no. 133of 2011. In the latter case, the court stated;

“Sufficient cause or good cause in law means: the burden placed on a litigant usually by court, rule or order to show why a request should be granted or an action excused. (see Blacks Law Dictionary, 9th Edition page  521), sufficient  cause must be rational, plausible, logical convincing , reasonable and truthful. It should not therefore be an explanation that leaves doubt in the judges mind.  The explanation should not leave unexplained gaps in the sequence of events.”

10) The Applicants’ counsel went on to submit that the Applicants filed for letters of administration ad litem on the 15th July, 2016 after the Plaintiff who is their father   passed on.  The counsel added that the delay in filing the succession cause was not deliberate but was caused by the Applicants’ financial constraints. That the Applicants were also not aware of this suit and that immediately after they became aware, they sought for letters of administration.  In my view, the submissions by the counsel amount to evidence from the bar as nowhere in their supporting affidavit have the Applicants deposed to the issues that their counsel has submitted on.

11) The counsel submitted that the Applicants have demonstrated sufficient cause that prevented them from being enjoined in this suit as parties and urged the court to exercise its discretion and order for the revival of the suit.

12) The Respondent’s counsel in her submissions stated   that the Applicants have not demonstrated sufficient case to warrant the revival of the suit.

13) Having read the application, the supporting affidavit, the replying affidavit as well as the submissions filed, my finding is as follows: - Firstly, it is common ground that the Plaintiff herein died on the 6th June, 2015. The Applicants herein are silent on why they did not file the succession cause  for letters of administration  before the 7th June, 2016 when the Plaintiff’s suit abated. Nowhere in their supporting affidavit have they indicated that they were not aware of the existence of this suit or that they had financial constraints which prevented them from filing for letters of administration ad litem.  They did not annex the grant of letters   which they alleged had errors for this court to see.  In my view, the Applicants cannot be seen to shift blame to others when it is clear that the delay to obtain the letters of administration ad litem squarely lies in their court.

14) The upshot of the foregoing is that I am in agreement with the Respondents counsel that the Applicants have not shown sufficient cause to warrant this court to exercise its discretion in their favour.  The application lacks merits and same is dismissed with costs to the Respondent.

Signed Dated and Delivered at Makueni this 13th day of December, 2018.

Mbogo C.G,

Judge

IN THE   PRESENCE OF;

Ms Mbuvi holding brief for Mrs. Nzau for the Defendant present

Mr. B.M Mungata for the Plaintiff/Applicant absent

Mr Kwemboi Court Assistant

MBOGO C.G, JUDGE

13/12/2018