Samuel Matheri Githen v Lawrence Mwaura [2017] KEHC 2456 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL CASE NO. 583 OF 2001

SAMUEL MATHERI GITHEN...................APPLICANT/PLAINTIFF

-VERSUS-

LAWRENCE MWAURA....................DEFENDANT/RESPONDENT

RULING

The Defendant/Applicant moved the court by a Notice of Motion dated 10th March, 2017 seeking orders that;

1)…spent

2)... spent

3)…spent

4)That all the pleadings and orders issued after the 4th July, 2013 be declared a nullity and expunged from the proceedings; and

5) THAT the costs of this application be costs in the cause.

This application is supported by the grounds on the face of the application and the Supporting Affidavit of LAWRENCE MWAURA.  Among the grounds are that the Defendant was the owner of motor vehicle KZL 861. An ex-parte judgment in this suit was entered on 31st July, 2001 and the Defendant was not aware of the suit all along until in year 2011 when an appeal was filed and he was served with a hearing notice.  He appointed the firm of Kiboi & Co. Advocates to come on record.  That the Plaintiff died on 5th August, 2012 and orders of substitution were issued on 27th June, 2014 when the suit had already abated. The Plaintiff has taken out warrants dated 13th February, 2017 and the Defendant’s goods are about to be proclaimed and attached. The Defendant has decided to engage the firm of Njiiri Kariu to come on record as the previous Advocates has failed to attend court on several occasions.

The Respondent filed Grounds of Opposition and a Replying Affidavit sworn by JOHN NJONGORO Advocate and dated 23rd March, 2017.  The Respondent states that the Defendant was aware of the Suit as he acknowledged being represented by Kiboi & Co. Advocates in CA No. 184 of 2003. That this Court lacks jurisdiction to revisit orders made by itself on 27th June, 2014 and the only way the Defendant could have invoked jurisdiction of the Court is by way of judicial review.  That the matter herein was heard and a judgment given when the deceased Plaintiff was alive hence there is no suit which is capable of abating in the circumstances.

The issue of abatement of suits on the death of a party is governed by the provisions of Order 24 of the Civil Procedure Rules which provide thus;

“1. The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives or continues. No abatement by party’s death if right survives.

2. Where there are more plaintiffs or defendants than one, and any one of them dies, and where the cause of action survives or continues to the surviving plaintiff or plaintiffs alone 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.

Procedure where one of several plaintiffs or defendants dies and right to sue survives.

3. (1) Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff 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 plaintiff to be made a party and shall proceed with the suit.

(2) Where within one year no application is made under sub rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff:

Provided the court may, for good reason on application, extend the time.

The general rule is that an application to have the personal representatives of the deceased plaintiff/ defendant replace him should be made within one year of the death of the deceased or else the suit shall abate. However, there is an exception to that rule where the proceedings involve execution of decrees and orders as is the case herein. This exception is provided for in Order 24 Rule 10 of the CPAthat, “Nothing in rules 3, 4 and7 shall apply to proceedings in execution of a decree or order”. This was the position taken in the case of Dhulla Harichand Vs. Gulam Mohu-Udin and Aziz Din s/o Gulam Mohu-Udin (1940) KLR Vol. XIX where the court held that execution proceedings do not abate on the death of the decree holder.

It follows that in this case where the deceased Plaintiff died after judgment had already been given, the provision of Order 24 Rule 3 did not apply. It is only a suit which is yet to be determined that can abate. Judgment had already been issued hence there is no suit which is pending determination.

The Court finds no merits in the application and the same is hereby dismissed with costs.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 3rdDay of November, 2017.

……………….

L. NJUGUNA

JUDGE

In the Presence of

………………………. for the Plaintiff

………………………. for the Respondent