Pauline Njeri Thande v Solomon Kiragu Thande, Elizabeth Wambui Muigai, Mathew Ngugi Murigi, Jotham Kahara Ndiangui, Irene Wairimu Gichungo, Walter Ngugi Mwaniki, Faith Nkatha Makebu Kiunga, Anthony Waweru Nderu, Benson Ngugi Njeri, Evah Nyambura Ngugi, Simon Ng’ang’a, Peris Wahinya, Maina Isaac Murage, Sylvia Anyango Ohaga, James Mwangi Kariuki, Sarah Wairimu, George Kyalo Machenzie, Dominic Njenga Kiruthi, Gerald Mbugua Ngigi, Zakayo Kuria, Jane Maina, Grace Wahu Ikinya, John Ndungu, Gathigia Gatheru, Muthoni Nyoike; Jeremiah Matoke Nyangwara & 21 others (Interested Parties) [2020] KEELC 589 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC SUIT NO. 629 OF 2011

PAULINE NJERI THANDE.....................................................PLAINTIFF

VERSUS

SOLOMON KIRAGU THANDE.................................1ST DEFENDANT

ELIZABETH WAMBUI MUIGAI..............................2ND DEFENDANT

MATHEW NGUGI MURIGI.......................................3RD DEFENDANT

JOTHAM KAHARA NDIANGUI................................4TH DEFENDANT

IRENE WAIRIMU GICHUNGO.................................5TH DEFENDANT

WALTER NGUGI MWANIKI.....................................6TH DEFENDANT

FAITH NKATHA MAKEBU KIUNGA.......................7TH DEFENDANT

ANTHONY WAWERU NDERU...................................8TH DEFENDANT

BENSON NGUGI NJERI..............................................9TH DEFENDANT

EVAH NYAMBURA NGUGI......................................10TH DEFENDANT

SIMON NG’ANG’A.....................................................11TH DEFENDANT

PERIS WAHINYA........................................................12TH DEFENDANT

MAINA ISAAC MURAGE..........................................13TH DEFENDANT

SYLVIA ANYANGO OHAGA.....................................14TH DEFENDANT

JAMES MWANGI KARIUKI......................................15TH DEFENDANT

SARAH WAIRIMU.......................................................16TH DEFENDANT

GEORGE KYALO MACHENZIE...............................17TH DEFENDANT

DOMINIC NJENGA KIRUTHI...................................18TH DEFENDANT

GERALD MBUGUA NGIGI........................................19TH DEFENDANT

ZAKAYO KURIA.......................................................20TH DEFENDANT

JANE MAINA................................................................21ST DEFENDANT

GRACE WAHU IKINYA...............................................22ND DEFENDANT

JOHN NDUNGU............................................................23RD DEFENDANT

GATHIGIA GATHERU...............................................24TH DEFENDANT

MUTHONI NYOIKE..................................................25TH DEFENDANT

AND

JEREMIAH MATOKE NYANGWARA &

21 OTHERS……………………………………..INTERESTED PARTIES

RULING

What is before me is a Notice of Motion application dated 16th May, 2019 brought by the interested parties seeking an order that this suit be dismissed for want of prosecution and in the alternative on the ground that the same has abated.  The application that was brought under Order 12 Rule 2 (sic) of the Civil Procedure Rules and Sections 3A and 1B of the Civil Procedure Act, Chapter 21 Laws of Kenya was supported by the affidavit of the 1st interested party, Jeremiah Matoke Nyangwara.  The application was brought on the grounds that the 1st defendant Solomon Kiragu Thande died on 19th October, 2013 and that the plaintiff and one, Kariuki Peter Thande were appointed as the administrators of his estate on 30th May, 2017. The interested parties contended that the plaintiff had refused to substitute the deceased 1st defendant so that she could proceed with the suit. The interested parties averred that the plaintiff’s suit as against the 1st defendant had abated and that it was only fair and just that the suit be dismissed.

The application came up for hearing on 8th October, 2020 when Mr. Babu appeared for the interested parties/applicants while Mr. Mwangi appeared for the 2nd to 25th defendants.  Mr. Babu urged the court to allow the application since the same was unopposed.  Mr. Mwangi supported the application by the interested parties.  He argued that the plaintiff had lost interest in the suit.

I have considered the interested parties’ application together with the affidavit filed in support thereof.  I am of the view that the application was brought under the wrong provisions of the Civil Procedure Rules.  An application for dismissal of a suit for want of prosecution should have been brought under Order 17 Rule 2 of the Civil Procedure Rules while the alternative prayer seeking the dismissal of the suit on the ground that the same had abated should have been brought under Order 24 Rule 4 of the Civil Procedure Rules.  On the merit of the application, I am of the view that there is no basis for the dismissal of the suit for want of prosecution. The interested parties’ application was filed on 18th May, 2019.  As at the time the application was filed, the suit had come up before the court for the last time on 11th March, 2019 for the parties to inform the court of the progress of the out of court settlement negotiations that they were engaged in.  As at the time the application before the court was filed, it was barely two (2) months from the time the suit was last in court.  Under order 17 Rule 2 of the Civil Procedure Rules, an application for the dismissal of a suit for want of prosecution can only be brought where a plaintiff has not taken action in a suit for at least one (1) year.  As I have shown above, that is not the case in the matter before me. Due to the foregoing, the interested parties’ application was filed prematurely to the extent that it sought the dismissal of the suit for want of prosecution.

With regard to the limb of the application that sought the dismissal of the suit on account of abatement following the death of the 1st defendant, I find merit in the same but only as concerns the plaintiff’s claim as against the 1st defendant.  It is not disputed that the 1st defendant died on 19th October, 2013 and that no steps have been taken to substitute him in this suit by his legal representatives.  Under Order 24 Rule 4(3) of the Civil Procedure Rules, the plaintiff’s suit as against the 1st defendant abated by operation of law after the expiry of one year from the date of his death.  The plaintiff’s suit as against the other defendants has however not abated.

Due to the foregoing, the interested parties’ application dated 16th May, 2019 succeeds in part.  I decline to dismiss the suit for want of prosecution. I however order that the plaintiff’s suit as against the 1st defendant has abated.  The costs of the application shall be in the cause.

Dated and Delivered at Nairobi this 19th Day of November 2020

S. OKONG’O

JUDGE

Ruling delivered through Microsoft Teams Video Conferencing Platform in the presence of:

N/A for the Plaintiff

Ms. Mwangi h/b for Mr. Ngugi for the 2nd to 25th Defendants

Mr. Ochieng h/b for Mr. Babu for the Interested Parties

Ms. C. Nyokabi-Court Assistant