REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NYERI

ELC NO. 269 OF 2014

(FORMERLY NYERI HCCC NO. 176 OF 2012)

MARY MURINGO MACHARIA....................................................................1^ST PLAINTIFF

NJOKI MACHARIA........................................................................................2^ND PLAINTIFF

MWANGI MACHARIA...................................................................................3^RD PLAINTIFF

-VERSUS-

WILSON MATU MACHARIA............................................................................DEFENDANT

RULING

1. By an application dated 18^th July, 2018 brought in the name of the Plaintiffs, it is urged that the name of Gladys Njoki Macharia (the 2^nd Plaintiff) who died on 2^nd July, 2014 be substituted with the name of David Nderitu Mwangi.

2. The application which is supported by an affidavit sworn by the said David Nderitu Mwangi wherein he swears briefly as follows:

1. That I am the administrator of the estate of Njoki Macharia (deceased) the 2^nd Plaintiff herein and therefore competent to make this affidavit.

2. That Njoki Macharia the 2^nd Plaintiff passed away on 2^nd July, 2014 and therefore it is necessary for her name to be removed in this case and substitute her with David Nderitu Mwangi (Annexed and marked “DNMA” is a copy of certificate of death).

3. That David Nderitu Mwangi was issued with Letters of Administration in Karatina Chief Magistrates Court Succession Cause No. 142 of 2017 but I have not filed the application for substitution of the Plaintiff in this case (annexed and marked “DNM –B” is the copy of letters of administration).

4. That I am applying that I be substituted in place of the late Njoki Macharia to enable us proceed with the matter until it is heard and determined.

3. The application is opposed.  In his Grounds of Opposition dated 21^st July, 2018 but filed herein on 21^st September 2018, Wilson Matu Macharia (the Defendant) opposes the application on the grounds:

1. That substitution under (Order) 24 Rule 3 of the Civil Procedure Rules may only be made within one year of the 2^nd Plaintiff’s death unless such time has been extended by the Court.

2. That the 2^nd Plaintiff died on 2^nd July, 2014 and the present application has been made after 4 years without any application for extension of time having been made.

3. That the Limited Grant issued to David Nderitu Mwangi in Karatina Succession (Cause) No. 142 of 2017 is limited to filing/defending suit and has no reference to being substituted and proceeding as a Plaintiff in this suit.

4. That on grounds 1, 2 and 3 above, the application is incompetent and fatally defective and ought to be dismissed with costs.

4. I have perused and considered the Motion and the response thereto.  From the material placed before me, it is apparent that the 2^nd Plaintiff – Njoki Macharia passed away on 2^nd July, 2014.  By the application presently before me, the Applicants desires to have her name substituted by that of David Nderitu Mwangi who was issued with the Limited Grant of Letters of Administration ad litem on 16^th August, 2018.

5. In that respect Order 24 Rule 3 of the Civil Procedure Rules provides as follows:

(1) Where one of two or more Plaintiffs dies and 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.

6. Arising from the foregoing, it was clear that an application for substitution should be made within one year of the death of the deceased Plaintiff.  In the matter before me, the 2^nd Plaintiff passed away on 2^nd July, 2014 and an application for substitution ought to have been made on or before 2^nd July, 2015.  No such application was filed until some four (4) years later.

7. That being the case it was clear to me that the suit as relates to the 2^nd Plaintiff had long abated.  Once the suit abates, there was no suit relating to the 2^nd Plaintiff for which substitution can be done.  An abated suit is non-existent prior to its revival.  For a suit to be revived, an appropriate application must be presented and the Court has a duty to consider the same based on the facts and the justification disclosed to have led to the delay and abatement.

8. No such application for revival of the suit in so far as it relates to the 2^nd Plaintiff has been made.  Nor has any explanation been offered in the brief affidavit filed in support of the application to justify the delay of four years in bringing the application for substitution.

9. It follows then that the application dated 18^th July, 2018 is misconceived the same having been filed out of time.  It must fail. It is dismissed with no order as to costs.

RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT NYERI THIS 24TH DAY OF MARCH, 2022.

IN THE PRESENCE OF:

Mr. Karingithi for the Defendant/Respondent

No appearance for Wagaka for Plaintiff/applicant

Court assistant - Kendi

.................

J. O. Olola

JUDGE