1.By the Notice of Motion herein dated February 2, 2020, Mary Muthoni Wanjohi (the Applicant) prays for orders:
2.The application is supported by a brief Affidavit sworn by theApplicant wherein she deposes in the main as follows:
3.In his Replying Affidavit sworn on April 26, 2022, Peter Thuku Kamau (the Intended Respondent) avers that his father Samuel Kamau Mageria died on June 3, 2017 and that by the time this Miscellaneous Application was filed, his father had already passed on.
4.The Intended Respondent further avers that Karatina Resident Magistrate’s Land Case No 14 of 2001 that this suit relates to has been fully determined in favour of his late father.
5.The Intended Respondent further avers that the suit herein is a nullity because it was filed long after his father passed on. He further avers that this present application is incompetent and fatally defective for the reason that he is not the Administrator of his father’s estate.
6.I have carefully perused and considered the Applicant’s application and the Intended Respondent’s response thereto. I have similarly perused and considered the submissions and authorities placed before me by the Learned Advocates representing the Parties herein.
7.The circumstances leading to the application before me are rather interesting. This Miscellaneous Application was instituted on March 13, 2019. By a Notice of Motion application dated the same day, Mary Muthoni Wanjohi (the Applicant) sought the following orders against the Respondent named herein as Samuel Kamau Mageria:
8.The Miscellaneous Application was thereafter fixed for hearing on July 17, 2019. On the said date, in proof of service of the application upon the said Respondent, the Applicant filed an Affidavit of Service sworn by her Advocate on record – Alexander Peter Kariithi wherein Counsel deposes as follows;
1.That on July 11, 2019, I proceeded to Gakuyu Sub-Location Konyu Location in Mathira Sub-County Nyeri County where I went at the home of one Samuel Kamau Mageria and I served him with a copy of Mention Notice dated July 12, 2019;
2.That he accepted my service but declined to sign my copy;
3.That he was known to me at the time of service;
4.That I return herewith my copy duly served; and
5.That the facts deposed to herein above are, true to the best of my knowledge information and belief.
9.How the Applicant’s Counsel purported to serve the Respondent and was able to swear an Affidavit to that effect will perhaps remain one of those mysteries of legal practice in this part of the world. As it turned out, on the date fixed for hearing, Messrs Nelko Masati & Company Advocates entered appearance for the said “Respondent”. On the same day, the said Law Firm filed a Notice of Preliminary Objection wherein they objected to the suit inter alia on the following grounds:
10.Upon being served with the Notice of Preliminary Objection, the Applicant through the same Advocate who purports to have served the Respondent now brings this application urging the Court to substitute the Respondent with Peter Thuku Kamau who is said to be his son and to revive the suit which is said to have abated.
11.The reason for the application for substitution is the fact that the Respondent had died on a date which the Applicant states she does not know. From a perusal of the Certificate of Death of Samuel Kamau Mageria annexed to the Intended Respondent’s Replying Affidavit, the said Samuel Kamau Mageria died on June 3, 2017, some two years before this Miscellaneous Application was filed and he was certainly therefore not the person the Applicant’s Advocate purported to have served on July 11, 2019.
12.As it were, it is trite law that a suit instituted against a person who at the time of filing the suit is already dead is a nullity. This Miscellaneous Application having been instituted two (2) years after the death of the Respondent was, as they say, dead on arrival. It being a nullity, the service of Summons and/or process issued in the suit and by whomsoever accepted the same was equally a nullity.
14.Arising from the foregoing, it was clear to me that there was no suit herein capable of being revived in the manner sought by the Applicant. There being no suit, the Intended Respondent could not be substituted for a person who had no capacity to be sued as at the time the suit was filed.
15.If follows that the Motion dated February 2, 2022 and the Miscellaneous Application dated March 13, 2019 were both completely misconceived and without any basis in law. Both are hereby struck out with costs to the Intended Respondent.