Gichohi & another v Muia & 6 others (Environment & Land Case 198 of 2015)  KEELC 402 (KLR) (25 January 2023) (Ruling)
Neutral citation:  KEELC 402 (KLR)
Republic of Kenya
Environment & Land Case 198 of 2015
A Nyukuri, J
January 25, 2023
James Kariuki Gichohi
Grace Wambui Kariuki
Naomi Miti Muia
Phillip Musembi Muia
Charity Muthoni Machanga
Benjamin Irungu Mwangi
Joseph Muchiri Kangangi
Muungano Self Help Group
Lazarus N. Muia
1.Before court is a Notice of Motion dated 9th August 2021 filed by the Defendants seeking the following orders;a.That the Honourable Court be pleased to order that the suit herein be dismissed for want of prosecution for over one year.b.That the Honourable Court in any event issue orders that the suit against the 1st Defendant who died in April 2016 and the one against the 7th Defendant who died in April 2020 abated for want of substitution within one year of death.c.That the cautions or any other encumbrances placed by the Plaintiffs/Respondents or on their behalf on LR DONYO SABUK/KOMAROCK BLOCK 1/20113 be removed forthwith.d.That costs of this application and of the entire suit be borne by the Plaintiffs/Respondents.
2.The application is anchored on the supporting affidavit of Benjamin Irungu Mwangi, the 4th Defendant. The Defendants’ case was that this matter was last in court in March 2020 and that the Plaintiffs have not made any effort to list it for hearing. Further that the 1st and 7th Respondents are dead and no substitution application has been made, as the 1st Defendant died on 4th April 2021 and the 7th Defendant died on 4th April 2020, which deaths the Plaintiffs are aware of.
3.The Applicants also stated that the 6th Defendant was suffering as the suit property was cautioned by the Plaintiffs.
4.The Application was opposed. James Kariuki Gichohi, the 1st Plaintiff filed a replying affidavit sworn on 4th October 2021 in opposition to the application. The Plaintiff/Respondents’ case is that this matter has been fixed for hearing severally but due to the death of the 1st and 7th Defendants, the Plaintiffs have been unable to proceed due to difficulties in obtaining the relevant information to cite the Defendants’ family members. They further stated that the 7th Defendant had prepared to proceed with the case but died during the Covid-19 pandemic.
5.The Respondents further stated that they had now obtained the relevant information and had prepared an application in the lower court citing the deceased Defendants’ relatives to file succession cause. That the 7th Defendant had been prepared to testify to confirm that the Plaintiff paid for the disputed land. That the case is meritorious and ought to be heard as the delay was due to the Covid-19 pandemic restrictions.
6.The application was canvassed by written submissions. On record, are the Defendants/Applicants submissions filed on 16th November 2021 and the Respondents submissions filed on 21st April 2021, both of which the court has considered.
Analysis and DeterminationDATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 25TH DAY OF JANUARY 2023 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the presence of;Mr. Gachiengo for the DefendantsMr. Gulenywa for the PlaintiffsMs Josephine – Court Assistant
7.I have carefully considered the application, the response, the parties’ submissions and the record. The issues for consideration are;a.Whether the suit should be dismissed for want of prosecution.b.Whether the suit as against the 1st and 7th Defendants should be marked as having abated.c.Whether the caution placed on the suit property should be removed.
8.Order 17 Rule 2 of the Civil Procedure Rules provides for the power of the court to dismiss a suit for want of prosecution as follows;(2)(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed and if cause is not shown to its satisfaction, may dismiss the suit.
(2)If cause is shown to the satisfaction of the court, it may make such orders as it thinks fit to obtain expeditious hearing of the suit.
(3)Any party to the suit may apply for its dismissal as provided in sub-rule 1.
(4)The court may dismiss the suit for no compliance with any direction given under this order.
(5)A suit stands dismissed after two years when no step has been undertaken.
(6)A party may apply to court after dismissal of a suit under this order.
9.Principles governing dismissal of suit for want of prosecution are well settled. The test is if the delay is prolonged and inexcusable and if justice can be done despite the delay. The Constitution of Kenya underscores the right to be heard on merit as a basis of substantive justice and the court should strive to hear the parties on merit, unless the ends of justice demand otherwise.
10.In the case of Mwangi S. Kimenyi vs. Attorney General & Another, Civil Suit Misc. No. 720 of 2009, the court held as follows;
11.I have perused the record and I note that on 14th November 2019, this matter was listed for 26th March 2020. Nothing happened between that date and 17th August 2021 when the Defendants fixed this matter for the hearing of the application herein. Between 26th March 2020 and 17th August 2021 there was a period of 17 months. The Plaintiff says the disruption of the Corona Virus pandemic was the reason for the delay for fixing the matter for hearing and that when the 1st and the 7th Defendants passed on, they needed information to cite the relatives to take out letters of administration.
12.It is common knowledge that the first case of Covid-19 was first reported in Kenya on 12th March 2020, with the effect that court operations and the daily lives of Kenyans were disrupted in a manner not experienced before, no wonder the record has no entries for the hearing date on 26th March 2020. The pandemic continued into a substantive part of 2021, and therefore it would be unfair to blame the Plaintiffs for failure to fix a hearing date in the year 2020. The application for dismissal was filed in August 2021. That was barely a year after the restrictions and disruptions that accompanied the Covid-19 pandemic. I do not think that the delay between 2020 and 2021 in the face of the Covid-19 pandemic can be termed as inordinate. In any event, the explanation given by the Plaintiffs is a matter of public knowledge and the same is excusable.
13.On whether the suit against the 1st and 7th defendants had abated, I note that the Defendants stated that the 1st Defendant died on 4th April 2021 while the 7th Defendant died on 4th April 2020. No death certificates were attached to the application to verify these allegations. Under Order 24 Rule 4(3) of the Civil Procedure Rules, a suit can only abate where the death of a party occurred 12 months before an application for substitution is filed. I note from the annextures filed by the Plaintiffs/Respondents that the 1st Defendant died on 22nd April 2016 while the 7th Defendant died on 2nd May 2020. This fact is not disputed by the Applicants. It is therefore clear that the suits as against the 1st and 7th Defendants have indeed abated. However, the Plaintiff is at liberty to apply for extension of time and substitution of the deceased Defendants as the cause of action survived the death of the Defendants.
14.On whether a caution on the suit property should be removed, no evidence was attached to the application to show that there is a caution placed on the suit property by the Plaintiffs. In any event, the claim for removal of the caution on the suit property is a substantive prayer by the Defendants in their counter-claim and therefore the same cannot be determined on an application at this preliminary stage, without hearing the parties on merit; as granting the order would amount to condemning the Respondents unheard.
15.In the end, I order that the suit as against the 1st and 7th Defendants be and is hereby marked as abated. The plaintiff is at liberty to apply. The costs of the application shall be in the cause.