Francis Kyengo Kaloki, Harrison Muthoka Kaloki, Philomena Kamia, Fidelis Nzomo Kaloki & David Kaloki v Peter Makenzie Kaloki (Deceased) & Homeward Agencies Ltd; Christine Nzula Makenzie & Titus Ndilo Kingesi (Intended Co-defendants) [2020] KEELC 2467 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 56 OF 2017

FRANCIS KYENGO KALOKI .....................................................................1ST PLAINTIFF

HARRISON MUTHOKA KALOKI ............................................................2ND PLAINTIFF

PHILOMENA KAMIA…..............................................................................3RD PLAINTIFF

FIDELIS NZOMO KALOKI …...................................................................4TH PLAINTIFF

DAVID KALOKI ...........................................................................................5TH PLAINTIFF

VERSUS

PETER MAKENZIE KALOKI(Deceased)...............................................1ST DEFENDANT

HOMEWARD AGENCIES LTD................................................................2ND DEFENDANT

AND

CHRISTINE NZULA MAKENZIE..............................1ST INTENDED CO-DEFENDANT

TITUS NDILO KINGESI..............................................2ND INTENDED CO-DEFENDANT

RULING

1.  In the amended Notice of Motion dated 17th June, 2019, the Plaintiffs have prayed for the following orders:

a.That this Honourable Court be pleased to revive the Plaintiffs’/Applicants’ suit.

b.That this Honourable Court be pleased to order the substitution of the 1st Defendant Peter Makenzie Kaloki who is now deceased with Christine Nzula Makenzie and Titus Ndilo Kingesi who are the legal representatives of the Estate of Peter Makenzie Kaloki as the new Co-Defendants in this suit.

c.That the costs of this Application be in the cause.

2.  The Application is supported by the Affidavit of the 1st Plaintiff who has deponed that pending the hearing and determination of the suit, the 1st Defendant died intestate and Christine Nzula Makenzie and Titus Ndilo petitioned to be administrators of his Estate in Machakos HC P&A 680/2013.  According to the 1st Plaintiff, the said persons were appointed by the court to be the administrators of the 1st Defendant’s Estate on 5th November, 2013.

3.  The 1st Plaintiff gave an explanation why the Application for substitution that was filed in the year 2014 could not be heard expeditiously. The 1st Plaintiff deponed that since the period for substitution of the 1st Defendant has since lapsed, the court should enlarge the time within which the Application should be heard and determined.

4.  The 2nd Defendant’s Director deponed that the suit against the 1st Defendant abated in July, 2014; that as at now, there is no suit as against the 1st Defendant and that this court cannot reinstate a suit that does not exist.

5.  In his submissions, the Plaintiffs’ advocate stated that under Order 24 Rule 7(2) of the Civil Procedure Rules, the court has discretion to revive a suit that has abated; that the initial Application was not heard and determined within the time frame provided for by the law for reasons which were beyond the reach of the Applicants and that the court should be guided by a great sense of justice and fairness. The Respondents’ counsel relied on the Replying Affidavit on record.

6.  The record shows that on 25th February, 2014, the Plaintiffs filed an Application in which they sought for an order to substitute the 1st Defendant who died on 28th July, 2013 with Christine Nzula Makenzie and Titus Ndilo Kingesi. To support their Application, the Plaintiffs annexed on the Affidavit the Grant of Letters of Administration which shows the people he wanted to substitute the 1st Defendant, who had been appointed as administrators by the court on 20th December, 2013.

7.  The Application for substitution dated 25th February, 2014 was filed within one (1) year of the death of the 1st Defendant. When the Application came up for hearing on 25th February, 2014, the same was certified as urgent. For one reason or another, the Application was never heard.

8.  The suit having abated after the lapse of one (1) year from the date of the death of the 1st Defendant, the Plaintiffs amended the Notice of Motion of 25th February, 2014 seeking for an order reviving the suit and for substitution. The amended Application is what is before this court.

9.  Order 24 Rule 7(2) of the Civil Procedure Rules gives the court the discretion to revive a suit that has abated. The Order reads as follows:

“(2) The 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.”

10. In the case of Soni vs. Mohan Dairy (1958) E.A 58, it was held that for an Applicant to succeed in having the suit revived, he has to prove that there was sufficient cause that prevented him from seeking the substitution of a deceased litigant within the requisite period of one (1) year.

11. As I have stated above, the Plaintiffs filed the Application for substitution of the deceased 1st Defendant before the lapse of one (1) year.  The Plaintiffs have explained that the Application could not be heard as the file was moved from the Environment and Land Court, Nairobi to Machakos, and before the file could reach in Machakos, it was misplaced.

12. Considering that the Application for substitution was filed timeously, the delay in having the Application prosecuted within one (1) year of the death of the 1st Defendant cannot be attributed to the Plaintiffs. The movement of the file from Nairobi to Machakos, and the disappearance of the file, contributed to the delay in prosecuting the matter, thus necessitating the filing of an amended Application.

13.  The Plaintiffs have given sufficient reasons why this suit should be revived. The Plaintiffs have also annexed a copy of the Letters of Administration for the Estate of the deceased 1st Defendant. The administrators of the deceased are the persons named in the Application, and are the right people to substitute the deceased 1st Defendant.

14.  For those reasons, I allow the amended Notice of Motion dated 17th June, 2019 as prayed.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 15TH DAY OF MAY, 2020.

O.A. ANGOTE

JUDGE