1.This is a ruling in respect of a notice of motion dated 10/2/2023 in which the Applicants seeks the following orders: -1.Spent2.That this honourable court do issue an order for substitution of the 1st Defendant with the Applicants herein.3.Spent.4.That after the hearing of the application inter-parties, the court be pleased to set aside the ex-parte judgement and decree of 26th March, 2018 and all other consequential orders against the 1st Defendant.5.That the matter be set down for hearing on priority basis.6.That costs be provided.
2.This suit was filed on 27/1/2014. The Defendants neither entered appearance nor filed defence. On 27/12/2014, the 1st Defendant died. Without disclosing the fact that the 1st Defendant had died, the plaintiff proceeded to fix the suit for formal proof. The process server filed false affidavits that he had been serving the Defendants including the 1st Defendant who was already dead.
3.Judgement was delivered on 26/9/2017. Through an application dated 8/9/2020, the plaintiff applied for execution of the decree. Once more, the process server purported to have served all the defendants including the 1st Defendant who had long died. The application was allowed on 14/10/2021.
4.The applicants therefore contend that the judgment was obtained through non-disclosure of material facts including any consequential orders are a nullity and should be set aside.
5.The Respondent contends that the process of execution has been completed and that to set aside the ex-parte judgement will only amount to an academic exercise as parties are now occupying their respective portions.
6.Parties were directed to file written submissions. The Applicants filed their submissions on 30/3/2023. The Respondent filed his submissions on 14/4/2023. I have considered the Applicants application as well as the opposition to the same by the Respondent. I have also considered the submissions by the parties.
7.There are two issues which are to be determined. The first is whether the Applicants should be substituted in place of the 1st Defendant and the second is whether the judgement and all consequential orders should be set aside.
8.On the first issue it is clear that the suit against the 1st Defendant abated within one year of his death. There was no substitution which was made. The Applicants have not applied to court to extend time for substitution. This being the case, there is no order which can be made for substitution without first seeking extension of time to revive this case. See the case of Rebecca Mijide Mungole & Another – Vs- Kenya Power and Lightning Company Ltd and 2 otehrs (2017) eKLR.
9.On the second issue, it is clear that the proceedings leading to the judgement of 26/9/2017 and the execution thereof were carried out against a deceased person. The Plaintiff who was aware of the demise of his neighbour did not disclose this to the court. The process server filed false affidavits of service. The proceedings leading to the judgement and execution are therefore a nullity and can be set aside ex debito justitiae as was stated by my brother Justice Olola in the case of Nicholas Kombe Pembe –Vs- Kenga Kombe & 3 others (2017) eKLR.
10.I consequently proceed to set aside the judgement delivered on 26/9/2017 together with all consequential orders. The Applicants are at liberty to bring an appropriate application seeking to revive the suit against the 1st Defendant and seek substitution thereof. The Respondent shall pay the costs of this application to the Applicants.It is so ordered.