Ndunda & 3560 others v Kitavi & 13 others [2023] KEELC 21859 (KLR)

Ndunda & 3560 others v Kitavi & 13 others (Environment & Land Case 369 of 2017) [2023] KEELC 21859 (KLR) (29 November 2023) (Ruling)

Neutral citation: [2023] KEELC 21859 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case 369 of 2017

A Nyukuri, J

November 29, 2023

Between

Kivindyo Ndunda & 3560 others

Plaintiff

and

Masila Kitavi & 13 others

Defendant

Ruling

Introduction 1. Before court is a notice of motion dated 27th February 2023 filed by the plaintiffs seeking the following orders;a.That the court be pleased to enlarge the time within which to apply to substitute the 1st, 2nd, 3rd, 4th, 10th 12th, 13th and 14th defendants by a period of 6 months.b.That Peter Musyoka Kauko, Isaac Nguti and Nicholas Mutuota Mukonza be substituted in place of Kivindyo Ndunda who has since died.c.That the said Peter Musyoka Kauko, Isaac Nguti and Nicholas Mutuota Mukonza be authorized to prosecute this suit on behalf of the other 3560 plaintiffs.d.That the costs of this application be provided for.

2. The application is supported by the supporting affidavit and further affidavit sworn on 27th February 2023 and 24th March 2023 by Nicholas Mutwota Mukonza. The applicants’ case is that they were not aware of the death of the deceased defendants, namely, the 1st, 2nd, 3rd, 4th, 10th, 12th, and 13th defendants and only became aware on 2nd February 2023, when they were in court. That even counsel for the deceased defendants was not aware of their clients’ death. That they have also learnt of the death of the 1st plaintiff Kivindyo Ndunda who died on 15th February 2020 and that they are yet to get the death certificate of Kivindyo Ndunda. He stated that the three of them were also plaintiffs and that their claim still exist, and they sought to be allowed to proceed with the suit in the names of the three plaintiffs. They further sought for six months to enable them find out persons to be substituted in the place of the above named deceased defendants.

3. It was their averment that the plaintiffs are over 3500 as per the filed list and that they were not applying as legal representatives of the 1st plaintiff as they sought to represent the other plaintiffs. They attached a burial permit for the deceased 1st plaintiff.

4. The application was opposed. Counsel for the 3rd, 6th, 7th, 8th and 17th defendants filed grounds of objection dated 13th March 2023. He stated that the applicants lack locus standi to make the application herein as they are not the legal representatives of the estate of the deceased 1st Plaintiff as they have no grant of letters of administration. They stated that no prayer for extension of time has been sought to substitute the 1st plaintiff and therefore their application was incompetent.

5. They also stated that the suit against the deceased defendants abated by operation of law and therefore no suit exists against them hence the application is incompetent as there is no prayer for revival of suit. They stated that no explanation had been given by the applicants as they only averred that they lived in clusters. They stated that there was inordinate delay for substitution of defendants who died, 13, 18, 18, 19, 1, 23, 9, 20, and 16 years respectively.

6. The application was canvassed by written submissions. On record are the applicants’ submissions dated 8th May 2023.

Submissions 7. Counsel for the applicants reiterated the contents of the applicants’ supporting and further affidavits and submitted that the first prayer was for extension of time by six months and that the prayer in respect to the deceased 1st plaintiff was not an application for substitution but that since the lead plaintiff had died they were seeking to pick three plaintiffs to step in and represent the other plaintiffs. They relied on Order 24 Rule 3 and Order 50 Rule 6 of the Civil Procedure Rules and argued that this court has unlimited powers to extend time. They contended that as the defendants’ deaths was not within the applicants knowledge until February 2023, the prayers ought to be granted. Counsel argued that even if the deceased defendants are not substituted, there are other defendants and therefore the plaintiffs can proceed against the other defendants.

Analysis and determination 8. The court has considered the application and the issue for determination herein is whether the applicants deserve the orders sought.

9. Order 24 Rule 4 of the Civil Procedure Rules provides as follows;Procedure in case of death of one of several defendants or of sole defendant. 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.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 subrule (1), the suit shall abate as against the deceased defendant.

10. Order 24 Rule 7 provides as follows;Effect of abatement or dismissal(1)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 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.

11. Therefore where a suit abates as against one or more defendants, the court has power to revive such suit where sufficient cause for continuing the suit is shown. In the instant application, the applicants have stated that they were not aware of the death of the deceased defendants until 23rd February 2023 and even counsel for the deceased defendants was not aware of the death of his clients. Having considered the record, it is clear that on 2nd February 2023, Mr. Mbindyo, counsel appearing for the deceased defendants informed court that he had not been aware that his clients were deceased until when he was conducting pretrial and that he only informed counsel for the plaintiffs on that date. It is therefore clear that the death of the deceased defendants was brought to the attention of the plaintiff in February 2023. The application herein was filed on 28th February 2023, just 18 days after the applicants being made aware of the deceaseds’ death. In my view, the fact that the plaintiffs were not aware of the death of the deceased defendants is sufficient cause to allow extension of time. The plaintiffs have sought for a six months extension. No reason has been given for such a long period. As the plaintiffs have stated that they need to find out who are the administrators of the deceased defendants to enable them file application for substitution, my view is that 30 days are sufficient.

12. Order 1 Rule 13 of the Civil Procedure Rules provides for appearance of one of several plaintiffs or defendants for the others as follows;Appearance of one of several plaintiffs or defendants for others.13. (1)Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.(2)The authority shall be in writing signed by the party giving it and shall be filed in the case.

13. Essentially, for one plaintiff to prosecute a matter on behalf of the other plaintiffs, all they need is written authority from the other plaintiffs. In the instant application, on the prayer for substitution of Kivindyo Ndunda by Peter Musyoka Kauko, Isaac Nguti and Nicholas Mutuota Mukonza, the defendants’ counsel argued that the plaintiffs lacked locus for lack of grant of letters of administration, while the plaintiffs argued that they only sought to prosecute this suit on behalf of the other plaintiffs and they were not substituting the plaintiff on account of grant of letters of administration. The court notes that this suit is a representative suit where the deceased 1st Plaintiff has been representing the other plaintiffs. In a representative suit, what a representative party needs to represent other parties in the suit is to file written authority to appear, plead and act for the others, from those parties. In this case, the three plaintiffs need to file the authority of the other 3560 plaintiffs to appear, plead and act in this case on their behalf. They do not need orders of the court because if the other plaintiffs do not agree to be represented by the three plaintiffs, this court cannot impose the three plaintiffs on them. They have the right to choose who represents them. Therefore, all that the three plaintiffs need is authority to appear, plead and act from the rest of the plaintiffs and not an order from this court. Hence this court declines the invitation to impose the three plaintiffs herein on the rest of the plaintiffs.

14. In the premises, the application dated 27th February 2023 succeeds in part to the extend that the time to seek substitution of the deceased defendants is extended by 30 days from the date of this ruling. There is no order as to costs.

15. It is so ordered.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 29TH DAY OF NOVEMBER, 2023 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the presence of:Mr. Njuguna for plaintiffsMr. Mbindyo 3rd, 6th, 7th, 8th and 17th defendantsNo appearance for other defendantsJosephine - Court Assistant