Whether the appeal can be revived by extending time
24.The protestor/ appellant, now deceased, was dissatisfied with the mode of distribution of land parcel number Kabare/Nyangati/2857 as her proposal was that she gets 5 acres, and her two sisters in law each to get one acre. She filed this appeal.
25.She then filed an application dated 28th July, 2018 seeking for orders of stay of execution pending appeal, which orders were issued on 8/2/2019 with a condition that the appellant pays to court Ksh. 50,000/= as security for costs.
26.The appeal was later admitted for hearing on 24th July, 2020.
27.On 30th August, 2019 the appellant died. The applicants did not take any action to have her substituted. This prompted the Respondent to file the application dated 12th October, 2020 to declare the appeal as having abated. They seek that the lower court file be forwarded to Wang’uru Principal Magistrates court for execution purposes.
28.The applicants blame the delay on covid 19 and the fact of the loss of employment for the delay in substituting the deceased appellant. The reason given by the intended substitutes is that Covid-19 pandemic prevented them from taking positive steps for substitution.
29.Order 24 Rules 3(1)(2) and 7 (2) of the Civil Procedure Rules, provide as follows:(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 subrule (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.…………..7(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.
30.There is no doubt that in law, by dint of the fact that one year elapsed without any application being made within one year for the deceased’s legal representative to be made a party to the suit, the suit abated.
31.In Rebecca Mijide Mungole & Another v Kenya Power & Lighting Company Ltd & 2 others Civil Appeal No.283 of 2015  eKLR the Court of Appeal emphasized the need to apply for extension of time as follows;
32.In the case of The Hon. Attorney General v The Law Society of Kenya & Another – Civil Appeal (Application) No. 133 of 2011 the Court of Appeal observed as follows as to the meaning of “sufficient cause”:
33.The court must thus carefully exercise its discretion when deciding whether the reasons given are “good” and “sufficient” to enable it to grant an extension, given that the extension is being sought in the light of an existing delay.
34.It is clear that, as pointed out by the respondents, when the appellant died in August, 2019, the Covid pandemic had not been identified anywhere in Kenya, leave alone anywhere in the world. Covid was for the first time announced in Kenya sometime in March, 2020, a period of over eight months from the date of death of the appellant. Further, court operations were still ongoing even after the said disease struck, except that the operations were downscaled.
35.Further, nothing has been availed to the court in terms of evidence to show that the applicants or either of them had lost a job, or how that affected them in pursuing the substitution. I do note that the 2nd applicant filed some medical papers to show that she had mild pneumonia associated with Covid 19 when examined on 4.5.2020; and had blood sugar tests on 14.06.2021. this notwithstanding they were able to pursue a grant of letters of administration ad litem on 4th February, 2021, hence the ailments do not really explain the failure to apply for substitution.
36.The applicants sought to rely on the holding by Oundo, J in Mathenge Ngatia Ngari (suing for himself and on behalf of his deceased brothers represented by their wives) v Christopher Wangombe Ngatia & another  eKLR where the Judge held:
37.In my view, the provisions of the Constitution in Article 159 that pre-empt the defeat of merit and substantial justice by the technicalities of the rules of procedure were never intended to oust procedure. The Constitution of Kenya 2010 is itself fairly laden with procedural technicalities in many aspects.
38.Order 24 Rules 3(1)(2) and 7 (2) of the Civil Procedure Order merely requires a party who wishes to benefit from them to show that he did not go to sleep, that he was not only desirous of making substitution but was actively pursuing the same , but that he was prevented from achieving his clear intentions by a good and sufficient cause. That is all that is meant by that Rule. I also think that where, as in this case, the applicant was enjoying an order of stay by the court, the threshold to show good and sufficient cause is somewhat heightened, because the inference is easily made that such party went to sleep upon enjoying the court’s largesse, and such perception must be counterbalanced by the evidence of the effort made by the applicant.
39.All in all, I am unable to find a satisfactory, rational, plausible, logical, convincing, reasonable and truthful explanation that leaves no doubt or unexplained gaps in my mind for the applicants’ delay in effecting substitution for 25 months from the date of the appellant’s death on 30th August 2019 to 7th October, 2021 when the applicants applied for extension of time to apply for substitution.
40.Accordingly, the application for extension and revival of the suit is declined and dismissed with no order as to costs.