Julius Mutava Kioko v Kyengo Kioko & Mbithe Kyengo Kioko [2017] KEHC 6998 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CIVIL SUIT NO. 300 OF 1995

JULIUS MUTAVA KIOKO.....................................PLAINTIFF/RESPONDENT

VERSUS

KYENGO KIOKO......................................................................DEFENDANT

MBITHE KYENGO KIOKO.................INTENDED DEFENDANT/APPLICANT

RULING

1. The Notice of Motion dated 3rd March, 2016 is seeking for the following orders:

a. That the time within which to file Application for substitution be enlarged and this suit be revived.

b. That the Intended Defendant/Applicant herein being the Administrators Ad-Litem of the estate of the late Kyengo Kioko be substituted as the Defendant herein in the place of the said Kyengo Kioko.

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

2. The Application is premised on the grounds that the original Defendant has since died; that the Intended Defendant has taken out Limited Grant of Letters of Administration Ad-Litem to continue defending the suit and that the Application will not prejudice the Plaintiff’s suit.

3. In response, the Plaintiff deponed that the suit having been struck out on 21st September, 2007, there is no suit capable of being revived; that the alleged cause of action is time barred and that the claim for costs does not survive a deceased litigant.

4. The Applicant’s counsel submitted that after the Defendant’s death, the Applicant was depressed; that she had financial constraints to file the current Application and that the only remaining issue is for the recovery of costs.

The Respondent’s counsel submitted that once a suit is struck out, it is incapable of being revived; that the Defendant did not file a Bill of Costs before he died and that the reasons cited for the delay are not good grounds to warrant enlargement of time.

It is not in dispute that on 21st September, 2007, Nambuye J(as she was then) struck out this suit with costs for being incompetent.

It is also not in dispute that the Defendant died on 17th June, 2012 before he filed the Bill of Costs.

The Applicant is now seeking to revive the suit pursuant to the provisions of Order 24 Rules 4 and 7 of the Civil Procedure Rules for the sole purpose of pursuing costs.

Order 24 Rule 4(1) of the Civil Procedure Rules provides as follows;

“4(1) Where one of two or more Defendants dies and the cause of action does not survive or continue against the surviving Defendant or Defendants alone, or a sole Defendant or sole surviving Defendant dies and the cause of action survives or continues, the court, on 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.”

10. On the other hand, Order 24 Rule 4(3) provides that where within one (1) year no Application is made under Sub-rule (1), the suit shall abate as against the deceased Defendant.

11. The above provisions of the law are not relevant in the instant case because by the time the Defendant died in the year 2012, the suit had already been struck out.

12. An Application to revive the suit can only be made where the cause of action “survives or continues.”

13. Considering that the Applicant’s cause of action is the recovery of costs, such a cause of action did not exist as at the time the deceased died in the year 2012.

14. I say so because after the suit was struck out, the deceased did not file the Bill of Costs to pursue the costs as directed by the court. In the circumstances, it cannot be said that a cause of action to pursue costs survived the deceased.

15. If the Applicant’s intention is to revive the suit, that would mean that the whole suit will be alive for the purpose of prosecuting it. However, that cannot happen in the current scenario considering that there is no suit to be revived in the first instance.

16. In any event, no good reason has been given by the Applicant as to why the deceased did not file the Bill of Costs between the year 2007 when the suit was struck out and the year 2012 when the Defendant died.

17. In the absence of an explanation as to why the deceased never filed the Bill of Costs for over five (5) years before he died, this court can only conclude that the deceased was not interested in pursuing the said costs.

18. For those reasons, I find the Application dated 3rd March, 2016 to be unmeritorious and the same is dismissed with no order as to costs.

19. For the record, this file is marked as closed.

DATED AND DELIVERED AT MACHAKOS THIS 17THDAY OF MARCH, 2017.

OSCAR A. ANGOTE

JUDGE