1.The application before me is that dated 30 September 2022 filed on behalf of the 4th defendant to the counterclaim filed by the 1st defendant in the main suit (I observe that the 4th defendant to the counterclaim of the 1st defendant has commonly, though erroneously, been described in this suit as the 5th defendant which is not the case). The application is brought pursuant to the provisions of order 24 rule 3 (2) and order 4 rules (1) and (2) of the Civil Procedure Rules, 2010. The substantive order sought is in prayer (3) of the application which seeks orders to have the applicant, George Mokaya, substitute the deceased 4th defendant to the counterclaim one John Joseph Mokaya (deceased). The applicant avers to be the son of the deceased and that he has obtained a grant of letters of administration ad litem to enable him represent the estate of the deceased. The supporting affidavit deposes that the deceased died on 7 October 2014 and thereafter goes into details of the case herein which I do not see the necessity of setting out.
2.The plaintiffs filed grounds of opposition to oppose the application stating that the application is incurably defective and bad in law. The 2nd defendant, a limited liability company, filed a replying affidavit sworn by its director, Michael Moragia Nyachae, to oppose the motion.
3.Ms Nyaenya, learned counsel for the plaintiff, submitted that such an application needs to be made within one year of death and the applicant has not applied for extension of time under order 24 rule 4 (3) and the application therefore needs to be struck out. Mr Nyanchoga, learned counsel for the 2nd defendant, submitted inter alia that the application is res judicata as a similar application had been allowed on 19 September 2019 (sic). He also submitted that the application is belated, coming 8 years after the demise of the deceased and added that this will affect the proceedings. He pointed out that the case has already been heard and is pending the filing of final submissions and judgment. Despite these submissions, and before Mr. Okenye learned counsel for the applicant could make his response, Mr Nyanchoga stated that upon discussion with Mr Okenye, the application may be allowed only that the 4th defendant to the counterclaim will be limited to filing submissions on the basis of the pleadings and evidence on record. Ms Nyaenya maintained that she is opposing the application.
4.The background is that this suit was commenced by the plaintiffs on 17 December 2008 against two defendants, respectively being Isaac Moindi Nyabera and Eagle and Bison Limited. The plaintiffs averred that the 1st defendant represented himself to be the owner of the land parcel Kisii Municipality/Block III/57 (the suit property) and pursuant to that representation they agreed to rent some space for use as a garage. They averred that they took possession in the year 2003 and started paying rent of Kshs 3,000/=. They pleaded that on 14 November 2008, the 1st and 2nd defendants forcefully entered the premises, towed away 11 motor vehicles on the premises that had been brought for repair, and other equipment, and destroyed their shed and offices. In the suit, the plaintiffs inter alia seek orders of delivery of the spare parts and tools of trade or their equivalent in value, damages for conversion and trespass, and an injunction to restrain the two defendants from taking possession of the land. The 1st defendant filed defence and counterclaim. In his defence, he basically denied the allegations of the plaintiffs. In his counterclaim, he sued the 2nd defendant and three other persons, being David Kenyanya Magare, Samwel Mobegi Okiagera and John Joseph Mokaya t/a Abagusii Theatre Cinema Company. For reasons I cannot fathom, these are the persons referred to in this suit as the 3rd, 4th and 5th defendants though they are respectively actually the 2nd, 3rd and 4th defendants in the counterclaim.
5.In the counterclaim, the 1st defendant contended that the 4th defendant to the counterclaim (Joseph, now deceased) and one Yuvinalis Michael Motuka Mageka (Yuvinalis), had sold to him the suit land on 25 March 1997. He claimed that before the transfer could be registered, David Kenyanya Magare (David) and Samwel Mobegi (Samwel), fraudulently obtained an order from the subordinate court to have the land registered in their names. He averred that on 14 November 2008, the defendants to the counterclaim forcefully entered the suit land. He did a search and discovered that the land had become registered in the names of the 2nd defendant at the instance of the other defendants to the counterclaim. He contended that this registration was fraudulent. In his counterclaim, he has sought orders that the suit land belongs to him, cancellation of the title of the 2nd defendant and for the land to be registered in name of Abagusii Theatre Cinema Company, and for a further order that thereafter the land be transferred to him.
6.The position of the 2nd defendant is that she purchased the suit property from the then registered owners, being David and Samwel, through a sale agreement dated 21 October 2008. Subsequently, the 2nd defendant was given vacant possession.
7.The 4th defendant to the counterclaim, Joseph Mokaya (now deceased) also filed defence and counterclaim. He denied transacting with the 1st defendant in the main suit or with the other parties. He pleaded that the suit land was registered in the name of Abagusii Theatre Cinema with himsef and Yuvinalis being the proprietors of this business. He pleaded that Yuvinalis, David, Samwel and himself were in partnership in other properties, which they divided, and David and Samwel ceded their interest in the suit property to Yuvinalis and himself. He averred that David and Samwel later filed the suit Kisii CMCC No 291 of 2007 against Yuvinalis and obtained judgment for the suit land but which judgment was later set aside. He contended that using the judgment that was set aside, David and Samwel fraudulently got themselves registered as proprietors of the suit land and later sold the land to the 2nd defendant company. In his counterclaim he sought an order of cancellation of title or in the alternative he be paid one half of the proceeds of sale together with interest.
8.I have seen that on 28 May 2009, an application dated 18 May 2009 was allowed, which application sought to have this suit consolidated with the suit Kisii HCCC No 159 of 2008. On 20 July 2011, directions were taken that the plaintiff in the said suit be treated as 6th defendant in this suit and the 3rd defendant in that suit be treated as the 7th defendant in this suit. I further observe that the plaintiffs gave evidence on 20 May 2013 before Okong’o J, and thereafter the matter has proceeded for defence hearing before Onyango J. On 31 May 2022, Onyango J directed parties to file and exchange written submissions within 60 days. That is the stage that the matter had reached prior to this application being filed.
9.I have already mentioned that the application is one to substitute Joseph Mokaya, the 4th defendant in the counterclaim. Joseph Mokaya died on 7 October 2014. It was urged by Mr Nyanchoga that this application is res judicata and my perusal of the record does indeed reveal that there was an application for the substitution of the 4th defendant dated 26 March 2019 filed through the law firm of M/s Josiah Abobo & Company Advocates. The applicant was George Mokaya who is the same applicant in the subject application. That application came up before Mutungi J on 30 April 2019 and the same was allowed. The Judge stated as follows: -
10.Despite the above order, the record does not show any amendment to reflect the substitution of the 4th defendant to the counterclaim. Proceedings subsequent to the substitution also do not show that the firm of M/s Josiah Abobo & Company Advocates were ever served to attend the hearing of the matter. I am aware that Mr Abobo, who was the proprietor of M/s Josiah Abobo & Company Advocates is deceased, meaning that Mr. George Mokaya thus needed to be served. My own view of the matter is that the proceedings subsequent to the substitution of the 4th defendant to the counterclaim are tainted for want of service but I will reserve that for directions after delivery of this ruling which is restricted to the issue of substitution of the deceased 4th defendant to the counterclaim.
11.I have demonstrated that the 4th defendant to the counterclaim is already substituted through the order of Mutungi J of 30 April 2019. The person who was allowed to substitute the 4th defendant cannot file a second application for substitution because his first application has already been allowed.
12.As a result, this application is res judicata and I have no option but to dismiss it. It is hereby dismissed with costs to the plaintiffs. I regret inability to award costs to the 2nd defendant given the concession that the application could be allowed.