Gachu & another v Ndocha & another (Environment & Land Case 41 of 2008) [2023] KEELC 17229 (KLR) (27 April 2023) (Ruling)
Neutral citation:
[2023] KEELC 17229 (KLR)
Republic of Kenya
Environment & Land Case 41 of 2008
OA Angote, J
April 27, 2023
Between
Alex Njoroge Gachu
1st Plaintiff
Margaret Wanjiku
2nd Plaintiff
and
Geoffrey Nyakundi Ndocha
1st Defendant
Savannah Development Company Limited
2nd Defendant
Ruling
1.In the application dated October 22, 2021, the 1st Defendant/ Applicant sought for the following orders:
2.This application is supported by the grounds on the face of it and the Affidavit sworn by the 1st Defendant, who deposed that this suit was instituted against the Defendants by the Plaintiffs, Stephen Mungai Gachu and Margaret Wairimu in a Plaint dated February 12, 2008; that the 1st Plaintiff died on August 10, 2017 and that between August 10, 2017 and August 9, 2018, no application to substitute the 1st Plaintiff with his legal representatives was made.
3.It was deposed by the 1st Defendant that the 1st Plaintiff’s suit automatically abated on August 9, 2018; that there has never been made an application to revive the abated suit and that on November 28, 2018, the Plaintiffs orally stated that they intended to amend the Plaint to substitute the 1st Plaintiff after obtaining a limited grant of representation, by which time the suit had abated.
4.The 1st Defendant/Applicant averred that the amended Plaint, which introduced Alex Njoroge Gachu and purported to substitute the 1st Plaintiff into the proceedings, is a nullity as there was no suit against the 1st Plaintiff to which Alex Njoroge Gachu could be substituted into.
5.It was the Applicant’s averment that the honorable court on October 4, 2021 took the evidence of Alex Njoroge Gachu and Margaret Wanjiku; that these proceedings were a nullity as the abated suit of the 1st Plaintiff was prosecuted by a stranger and that the suit was founded on two sale agreements between the 1st Plaintiff and the 1st Defendant, to which neither Margaret Wanjiku nor Alex Njoroge Gachu were a party.
6.It is the 1st Defendant’s case that Margaret Wanjiku and Alex Njoroge Gachu are not clothed with the necessary locus to enforce the two sale agreements and that Margaret Wanjiku cannot maintain her remaining suit against the 1st Defendant given the doctrine of privity of contract.
7.The 2nd Plaintiff/Respondent opposed the application vide a Replying Affidavit dated February 7, 2022. She averred that the suit could not abate as she was a party to the suit and when the 1st Plaintiff, her husband, passed on, the suit survived; that when their advocates made the oral application on November 28, 2018 seeking to amend the Plaint and substitute the 1st Plaintiff, the Applicant did not oppose the same and that the application was granted by the Court.
8.According to the 2nd Plaintiff/Respondent, regularizing of pleadings could not be done in time and that on March 13, 2019, they filed an application seeking enlargement of time to regularize and file the amended Plaint; that this application was served upon the Applicant, who did not oppose it and that the court allowed the application.
9.It was deponed that the Amended Plaint was filed on February 22, 2019 and served on the 1st Defendant on May 21, 2019; that the Applicant filed an Amended Statement of Defence and Counterclaim on June 6, 2019 and that Alex Njoroge Gachu and the Respondent obtained letters of administration to enable them to proceed with the substitution of the 1st Plaintiff, which were served upon the Applicant.
10.It was the 2nd Plaintiff’s/Respondent’s deposition that the term ‘purchaser’ in the sale agreement states that it shall include his successors and assigns where the context permits; that Alex Njoroge Gachu and herself qualify as the deceased’s successors and assigns; that the letters of administration issued on September 26, 2018 have granted the Plaintiffs locus standi to be rightful parties in these proceedings and that there was inordinate delay in filing this application.
Submissions
11.This suit was canvassed by way of written submissions. The 1st Defendant’s/Applicant’ Counsel submitted that the application was not opposed by Alex Njoroge Gachu and thereby should be allowed as it relates to him.
12.Counsel submitted that the suit instituted by the 1st Plaintiff abated on August 9, 2018 and that this suit has never been revived as outlined under Order 24 of the Civil Procedure Rules. The 1st Defendant relied on the cases of Mukulu Kaula & Another v Agnes Milele & 3 Others [2019] eKLR, Kenya Farmers Co-operative Union Limited v Charles Murgor (Deceased) /a Kaptabei Coffee Estate [2005] eKLR and the Court of Appeal’s decision in Rebecca Mijide Mungole & another v Kenya Power & Lighting Co Ltd & 2 Others [2017] eKLR.
13.It was Counsel’s submission that the 2nd Plaintiff does not have locus standi to file a case against the 1st Defendant as she is not a party to the sale agreement and as such, she is bereft of any cause of action and that the suit is thus an abuse of the court process.
14.The Applicant’s counsel submitted that the doctrine of estoppel does not apply to matters stemming from express provisions of the law. Counsel relied on the case of Henry Muthee Kathurima vs Commissioner of Lands & another [2015] eKLR.
15.Counsel for the 2nd Plaintiff/Respondent submitted that the Applicant is estopped from going back against that which he endorsed; that the Applicant and/or his advocates failed to raise any concerns with respect to the application dated March 12, 2019 to enlarge time to file the amended Plaint and that the Applicant, upon being served with the amended Plaint, filed his Amended Defence and Counter-claim and complied with pre-trial directions.
16.The Respondent’s counsel relied on the case of Mcllkenny v Chief Constable of West Midlands [1980] All ER 2027, which is quoted in 748 Air Services Limited v Theuri Munyi [2017] eKLR. They also relied on the definition of the term ‘waiver’ in the case of Banning v Wright (1972) 2 All ER 987, quoted in 748 Air Services Limited v Theuri Munyi [2017] eKLR.
17.Counsel further submitted that the Applicant had waived his right and was undeserving of the orders sought and that as was held in the case of Rajnikanthkhetshi Shah v Habib Bank AG Zurich [2016] eKLR, where waiver is implied from conduct, the court has to consider the circumstances of the case to establish conduct inconsistent with the continuance of the right.
18.It was also Counsel’s submission that the Respondents qualify to be the successors, assigns and beneficiaries of the deceased, defined in the contract and included in the term ‘purchaser’; that vide the grant of Letters of Administration intestate dated September 26, 2018, the Plaintiffs were appointed as co-administrators of the estate of the deceased; and that the said Letters of Administration granted the Respondents the locus standi to be rightful parties in these proceedings.
Analysis and Determination
19.Upon consideration of the application, affidavits evidence and submissions filed by the parties, the following are issues that arise for consideration:
20.The facts of this case are that the late Stephen Mungai Gachu together with his wife, Margaret Wanjiku, jointly sued the Defendants seeking specific performance of a sale agreement between the parties with respect to parcel of land known as Nairobi Block 82/782 Savannah Estate Phase 1 (the suit land).
21.Stephen Mungai Gachu, the 1st Plaintiff, thereafter died on August 10, 2017. The 1st Defendant/Applicant has averred that no application to substitute the deceased was sought within a year, as prescribed under Order 24 Rule 3(2) of the Civil Procedure Act, an assertion the Respondents have not denied.
22.Order 24 Rule 2 of the Civil Procedure Rules provides that where one of multiple Plaintiffs dies and the suit survives, the court shall note the same and the matter shall proceed at the instance of the surviving Plaintiffs or against the surviving Defendants.
23.In this matter, the suit was filed jointly by the late Stephen Mungai Gachu and his wife, Margaret Wanjiku. The 1st Defendant/Applicant has prayed that the suit against the 2nd Plaintiff be dismissed on the ground that she lacks locus standi as she was not a party to the sale agreements in issue in this suit.
24.In the case of Julian Adoyo Ongunga & Another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] eKLR, the court held as follows as relates to locus standi:
25.This suit is seeking to enforce two sale agreements to which the late Stephen Mungai Gachu and the 1st Defendant were parties. The 1st Defendant/Applicant argues that the 2nd Plaintiff is precluded from pursuing this suit in her personal capacity as she is barred by the doctrine of privity of contract, which dictates that a contract cannot be enforced by a third party. This position was held by the Court of Appeal in Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & Another [2015] eKLR as follows:
26.A similar finding was made by the Court of Appeal in Aineah Likuyani Njirah vs Aga Khan Health Services [2013] eKLR:
27.In William Muthee Muthoni vs Bank of Baroda [2014] eKLR, the Court of Appeal considered the exceptions to the doctrine of privity of contract as follows :
28.In this suit, it is not disputed that the 2nd Plaintiff was not party to the sale agreements. However, considering that she was the wife of the 1st Plaintiff, the issue of whether an agency relationship arose in the entire transaction between the 1st Plaintiff and the 1st Defendant in which the 1st Plaintiff transacted on her behalf, or a trust relationship existed is debatable.
29.That being so, and without interrogating the documents on record and the two exceptions to the doctrine of privity of contract which the 2nd Plaintiff may fall into, I decline to hold at this stage that the suit did not survive the and Plaintiff upon the demise of the 1st Plaintiff.
30.The next issue for consideration is whether Alex Gachu was rightfully enjoined in this suit in the place of the deceased 1st Plaintiff. Order 24 Rule 3 (1) and (2) of the Civil Procedure Rules provide as follows:
31.The Applicant has also relied on the binding decision by the Court of Appeal in Rebecca Mijide Mungole & Another vs Kenya Power & Lighting Company Ltd & 2 Others [2017] eKLR, where the court held that where a suit has abated, it is imperative that an application be made for extension for joinder of the deceased Plaintiff’s legal representative.
32.In this matter, it is not disputed that this suit abated on August 9, 2018 upon the failure to apply for substitution of the deceased 1st Plaintiff with his legal representative within one year of his death. The suit by the 1st Plaintiff therefore abated by operation of the law.
33.When this matter was mentioned before this court on November 28, 2018, counsel for the Plaintiffs made an oral application to file an amended Plaint and indicated that they had been issued with a grant ad litem. The Applicant thereafter sought leave to file a Defence and counterclaim. The court granted the parties leave to amend their pleadings and thereby allowed the substitution of the 1st Plaintiff.
34.The Plaintiffs filed their amended Plaint on February 12, 2019 and the 1st Defendant/Applicant filed an Amended Defence and Counterclaim dated June 6, 2019. The parties thereafter set down the matter for hearing.
35.The Applicant has sought that the proceedings and the pleadings filed by the Plaintiffs be expunged from the record of the court because the 1st Plaintiff should not have been substituted in the first place before reviving the suit.
36.This court has already held that the 1st Plaintiff’s suit might have survived the death of the 1st Plaintiff. Secondly, the Applicants are estopped from claiming that this suit had abated and the substitution of the 1st Plaintiff is unlawful as they acquiesced to its revival.
37.The term ‘acquiescence’ is defined in Halsbury's Laws of England, 4th Edition, Volume 16 at page 994 as follows:
38.The Court of Appeal in Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR, also held that silence and participation in legal proceedings constitutes waiver. They quoted with approval the English case of Leonidas D [1985]1 WLR 925, in which Robert Goff L J stated that: -
39.Closer home and in similar circumstances, this court in Boniface Mutwiri Kungania v Japhet Kirimi M’rinkanya [2022] eKLR held as follows:
40.In the circumstances, this court enters a finding that the Applicant acquiesced to the joinder of Alex Njoroge Gachu and revival of this suit vide the Amended Plaint dated February 12, 2019. Such acquiescence can be further inferred by the conduct of the 1st Defendant/Applicant in filing an Amended Defence and Counterclaim and its participation in this suit. The delay in filing the application was unreasonable and constitutes laches.
41.Lastly, considering that the hearing of this suit has already concluded, with the Plaintiffs having adduced evidence and the Defendants having chosen not to do so, it is only just that this suit be disposed of on its merits.
42.For those reasons, the application dated October 22, 2021 is dismissed with costs.
DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 27TH DAY OF APRIL, 2023.O. A. ANGOTEJUDGEIn the presence of;Mr. Macharia holding brief for Kabathi for Plaintiff/RespondentMr. Malanga for 1st DefendantCourt Assistant - June