Regina Waithira Mwangi Gitau v Boniface Nthenge [2015] KEHC 2475 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO.  327  OF 2012

REGINA WAITHIRA MWANGI GITAU

(SUING AS THE PERSONAL REPRESENTATIVE OF THE ESTATE  OF

SAMUEL KAMAU MWANGI (DECEASED)……………….APPELLANT

VERSUS

BONIFACE NTHENGE……….……………………….…..  RESPONDENT

JUDGMENT

This appeal arises from the ruling and order of the Principal Magistrate the Honourable Mr P.Nditika at Nairobi Milimani CMCC No. 1695 of 2009 delivered /made on 28^th may 2012.

The appellant Regina Waithira Mwangi Gitau suing as the personal representative  of the estate of Samuel Kamau Mwangi  deceased  was not a party to the proceedings  in the lower court.  One Joseph Mwangi  Gitau  was the plaintiff who had sued  Boniface  Nthenge  the respondent herein for general damages as well as  special  damages arising from the fatal road  traffic accident  involving the deceased  Samuel Kamau  Mwangi  and the defendant/respondent’s motor vehicle  registration number KBS 159V which is alleged to have lost control along Mombasa –Nairobi road at Mlolongo, and veered  off the road  thereby violently knocking the  deceased  who was lawfully  at his place of work  as a mechanic  as a  result of which he sustained  fatal  injuries.

The suit was instituted on 23^rd March 2009 vide a plaint dated 17^th march 2009.  The defendant /respondent Bonface Nthenge  entered an appearance  on 14^th April 2009   and  filed his  defence on 17^th April 2009  denying the claim and pleading  contributory negligence on the part of the  deceased and fraud on the part of  the plaintiff.  Joseph Mwangi Gitau. On 30^th April 2009 the plaintiff did file a reply to defence reiterating the contents of the plaint and denying particulars  of contributory  negligence and or fraud  pleaded  by the defendant.

By 24^th February, 2012, the suit had not been heard  or determined and by an  application dated 8^th February 2012 made in the subordinate court, the  plaintiff’s advocates B.W.  Kamunge & Company Advocates  fileld a Notice of Motion dated  8^th February 2012  seeking  orders:-   

1. That the plaintiff’s (deceased’s ) suit be  revived as it has abated.
2. That the plaintiff Joseph Mwangi  Gitau  (deceased)   be substituted  with  Regina Waithira  Mwangi  the legal  representative  of the deceased’s estate.
3. That the costs of this application be in the cause.

The application was premised on the grounds that:-

1. The plaintiff died on 16^th June 2010 and her suit had  since abated  hence  the application  to revive  the suit.
2. Regina Waithira Mwangi had obtained a grant of letters of administration for the estate of the plaintiff (deceased) and desires to proceed with the deceased’s plaintiff’s suit.

The said application was further supported by the affidavit sworn on 8th February 2012 by Benson Wainaina Kamunge advocate having the conduct of the matter on behalf of the plaintiff/applicant.  He annexed  copy of death certificate  for the deceased  plaintiff  Joseph Mwangi Gitau, a letter from the chief of Gaichanjiru location identifying the applicant as the widow of  the  deceased Joseph Mwangi Gitau, who was  also the father to the deceased Samuel Kamau  Mwangi; a limited grant of letters  of administration  in favour of Regina Waithira Mwangi  the applicant and  a copy of draft  amended plaint.

Mr Kamunge deposed that  it was  necessary to substitute the  deceased  with the applicant who  was also the mother to the original deceased Samuel Kamau  Mwangi and have the suit revived   as it had  abated following the demise of the  original plaintiff.

The respondent/defendant  opposed  the said application and  filed a  replying affidavit sworn on 29^th March  2012  contending  that the delay in filing  the  application was inexcusable as the  applicant had  obtained  grant of letters  of administration ad litem  on 7^th December 2010.  He also  deposed  that the affidavit  supporting  the application was  defective hence  the same  should be  expunged  from the records  and that  the application   was frivolous   vexatious  and  an abuse of  the court process hence it merits  no consideration.

In her skeletal submissions filed on her behalf by her advocate, the applicant through Mr Kamunge submitted that the delay in filing the application was caused by misfiling of their file and they could not trace it until late.  Further that there would   be no prejudice to the defence case and the delay occasioned could be compensated by way of costs which the applicant was   willing to bear.  He also relied on Section 3A of the Civil Procedure Act and the enabling provision of the law.  That it was only fair that the court exercises its discretion on favour of the applicant so as to allow the suit to proceed to full hearing on merits.  The record shows that the defendant was on 23^rd March 2012  granted leave to file  further  affidavit  but none is  on the court  file or record of appeal.

In his submissions filed on 30^th April 2012  the defendant’s  counsel Morara  Apiemi & Nyangito Advocates submitted  that the suit  against  his client  had abated  and therefore the application  dated 8^th  February  2012 seeking to revive  it had no merit  and the same was  defective for reasons that it  had been brought after one  year and under  the provisions  Order24 Rules  1,2 and 3 of the  Civil Procedure Rules .  Further,  that the applicant  had cited  wrong enabling  provisions  of the law instead  of Order 24 Rule of the Civil Procedures  Rules  citing M. Mboroki Marangacha vs Land Adjudication Officer  Nyambene & 2 Others  (2005) e KLR  that” there  is no suit before  the court into which  the applicant  as a legal representative of  the  exparte  application can be joined”  and that  “ the application was  brought under a  nonexistent  suit  without  which the application makes  little sense……….”

It was  also submitted that there  was no explanation  or sufficient  cause  stated for the  delay in bringing the  application as required  under Order  24  Rule 7 (2)  of the Civil Procedure  Rules.  The defendant  attacked the allegation that the applicant lived   in Nairobi and  was not aware of  the accident involving  the deceased  who was her son, which he considered  absurd  and untruthful since she had  even obtained  the grant on 7^th December 2010  before the suit abated.  He relied  on Gerphas  Alphonse Odhiambo  vs Felix  Adiego (2006) e KLR  that “ the  period of delay  however short must  go in tandem  with the explanation  for it”.

The defendant also  submitted that  the application was also defective  because the supporting  affidavit  was sworn  by her advocate  Mr Kamunge on matters which only the applicant  could be  cross examined.  He  relied on  the Gerphas  Alphonse  Odhiambo (supra) case where the court disregarded an affidavit sworn by the advocate  on behalf  of his client  who was available  to swear  to prove the  facts of their own knowledge.

He prayed  that the application be dismissed with costs.

In his brief ruling Hnonourable P. Ndikita, Principal  Magistrate  dismissed  the application for revival of suit and or substitution of the applicant/appellant herein on  the grounds  that the  application was  supported  by an affidavit  sworn by  her counsel  in the conduct of suit.  He relied  on the decision  of Gerphas Alphonse Odhiambo (supra).  He  also found that the application was brought late yet the applicant  lived in Nairobi and being close to  the deceased, she could not  purport  to state  that she learnt  of the death of the deceased  late.  the trial magistrate considered  that  the case  had been  hanging on the defendants since 2009  hence  the defendant  would  be prejudiced  if the application was allowed.

It is that ruling and order of dismissal that provoked this appeal.

The appellant’s memorandum of appeal sets out grounds of appeal namely:

1. The learned Principal Magistrate  erred  in law and in fact in dismissing  the plaintiff’s/appellant’s  application dated 8^th February  2012  without  giving  regard to the  principle of substantive  justice.
2. The Learned Principal Magistrate erred in law and in fact in failing to consider the appellant’s written submissions on the application.

She prayed that the appeal be allowed, with costs and an order that the ruling of the lower court be set aside and or varied and direct that the plaintiff’s suit in the lower court be revived and substitution be allowed.

The appeal was admitted to hearing on 19^th May 2014 and directions given on 12th June 2014.

When the parties appeared  before me  on 12^th November 2014  they agreed  to dispose  of the appeal by way of written submissions and  the matter  was  slated  for mention on 18^th December 2014  to confirm  compliance  within 14 days from 12^th November 2014.  By 18^th December 2014   only the appellant had filed written submissions.  The respondent did not  attend court  and neither  did  he file any submissions hence  I set the matter for delivery of  judgment  for 13^th April 2015 which  date reached  when I was engaged  in a training at the Judicial Training  Institute  for the new judges  hence the  delay in delivering  this judgment.

However, as I was preparing to write this judgment, the respondent’s written submissions were brought to my chambers headed “ APPELLANT’S written submissions” signed by  Morara Apiemi & Nyangito Advocates    for the respondent.  The same were filed on  16^th December 2014  but not placed  on the court file.  I have nonetheless  examined  and considered  the said  submissions  though filed out of the  14 days   given, since the appellant did not  file an affidavit  of service showing  when  their submissions  were served  on the respondent’s counsel.

In the written submission filed  by the  appellant  on 28^th November 2014, the applicant gives  a background  of the matter  giving  rise to  the suit and the application.

In support of the two grounds   of appeal, the appellant’s counsel submitted that the magistrate was wrong on principles  of the law in  striking out the  plaintiff’s affidavit.  He relied on Jane Jaoko Owino vs Blue Shield  Insurance Co. Ltd  HCC 359/2000 where Justice Tanui J held that:

“ An affidavit  sworn by an advocate  on matters which  are not  in dispute  and supported by the court  record  is not defective…….”

In his view, the trial magistrate  misinterpreted  Order  19 Rule 3(1)  of the Civil Procedure  Rules which provide that  “ affidavits shall be  confined  to such facts as the deponent is able  of this own knowledge  to prove.”

Further, that the matters before the trial magistrate were fairly simple  such as whether  the plaintiff  was deceased, whether  the suit  had abated hence  the need  to apply for revival of the  suit, which matters were  within  the  personal  knowledge of the advocate  seized  of the plaintiff’s case as shown  by death certificate, among  other documents.  That the defendant stood  to suffer  no prejudice  since no legal right  accrued in the matter as the  plaintiff’s suit was yet to be heard  and determined, which prejudice  if any could  be compensated  by way of costs  if the suit  was revived  to proceed  to full  hearing on the merits.  The appellant further relied on the case of V.K. Construction Co. Ltd vs Mpata Investment Ltd HCC 257/2003 where Honourable Ringera J pronounced himself thus:

“ ……..the jurisdiction to strike out  pleadings  is to be exercised  cautiously and sparingly and only where the cause  of action is  so obviously  bad and  almost  incontestably bad.  For the  remedy is a draconian one and where life  can be injected in the  plaint  by an amendment  the plaintiff  should be  given a chance  to do so”  that further  the discretion of the court   in such a scenario is unfettered  and the  learned  magistrate  should  have exercised  that discretion in favour of the plaintiffs/applicant and failure  to revive the suit occasioned  a traversity  of justice.

Mr Kamunge  advocate for the appellant further submitted  that  the trial magistrate erred in finding  that the  application was made late  yet the  deceased died on 16^th June 2010  and the application  was made on  24^th February 2012.  He relied on Soni vs  Moan Dairy CA 13/1967 (1968) EA  58 where Duffs  JA stated :

“ …………the period of limitation for an application  by a plaintiff  under Order  23 Rule  8(2) now (Order 24 Rule 8(2) ……………for  an order  reviving a suit is  given by Article 178 of the Indian Limitation Act  1877 and is three years  from date  of abatement  of the suit………..:”

In his view, the application was filed within  time hence  the magistrate was wrong  in holding  that the  application was filed  after the lapse  of time.

In his written submissions dated and filed on 16^th December 2012, the respondent submitted that the appeal lacks merit for the reasons that:

(a) the supporting  affidavit  to the application was defective   as  advocates  should not  depose  of facts  which only  parties  can prove  and that if counsel  swears  an affidavit, he descends into the  arena  of the litigants  by purporting  to be a  witness especially on matters  of fact, which practice  has been frowned upon  by courts  over time.  He referred  to  paragraph 8 of the affidavit of Kamunge advocate  which he alleged purported to explain the circumstances that prevented  the appellant  from filing the necessary application  in time, posing the question:-supposing the respondent had  wanted to cross examine  the deponent on matters regarding where  she lived, when she knew about  the plaintiffs(her husband’s death), when she  knew  about  the suit, etc, would  the advocate  be in a position to respond thereto?  His  answer is “ clearly not;” and that it  would have been embarrassing for counsel  to step from the bar  into  the witness  box hence the trial magistrate  was  right in striking  out the affidavit.  Further, that nothing prevented  the appellant to  swear  the affidavit and explain the  delay herself.  He relied  on the Gerphas  Alphonse  Odhiambo (supra) case where  Waki  JA  disregarded  the affidavit sworn  by  an advocate  on behalf  of this client  who was  available  to swear and prove  the facts of  his own knowledge.

On the delay in bringing  the  application, the respondent  submitted that  the appellant  had not explained the delay since  she got the chief’s letter on  28^th July 2010 recommending her to be substituted   in the place of her deceased  husband/plaintiff and even obtained  a limited  grant  within one year of his demise  but it took  her nearly 2 years  to file the application for substitution  and revival of suit.

In the respondent’s view, the appellant was lying when she stated  through her advocate  that she lived in Nairobi  and did not know of the plaintiff’s accident  (sic) until very much  later on hence  the appeal should be  dismissed  with costs.

I have  carefully considered   the appeal herein, the application by the appellant before the subordinate court, the respective  parties  submissions before that court, authorities  relied  on both  in the lower court  and in this appeal, and the submissions  by the appellant in support  of this appeal as well as the opposing submissions  by the respondent.  I have also considered the applicable law and precedents relevant to the matter. This being the first appellate court, this court is obliged under section 78 of the Civil Procedure Act to reevaluate, reassess and reconsider the matter before the lower court in the exercise of its powers as those of the trial court and arrive at its own independent conclusion, and that is exactly what this court has done in this case.

Two issues emerge for determination

1. Whether  an advocate can swear  an affidavit  on behalf of his client and therefore whether the supporting  affidavit by Kamunge advocate  is sustainable  in law.
2. Whether the appellant’s application I the lower court had merit.

On issue number one, the established principle of law  is that advocates should not enter  into the  arena  of the  dispute  by swearing affidavit on contentious matters  of fact.  By  swearing an affidavit  on contentious  issues, an advocate thus  makes himself  a viable  witness  for cross examination  on the case which  he is handling  merely as an agent  which  practice is irregular.  In Simon Isaac  Ngugi vs Overseas  Courier  Services (K) Ltd  1998 e KLR and Kisya Investments Ltd & Others  vs Kenya Finance Corporation Ltd, it was held that .

“………………….it is not  competent  for a party’s advocate  to depose to evidentiary  fact at any stage  of the suit”.

In addition, Rule 9 of the Advocates  Practice Rules prohibit advocates  from appearing  as  an advocate  in a case wherein he might  be required to give  evidence  either by affidavit  or  even orally.  By swearing  an affidavit  on behalf  of his client  where  issues are  contentious, an advocate’s affidavit  creates a legal muddle  with untold consequences.

However, where an affidavit  by an advocate raises  issues of law and fact  which are within  his knowledge  having been an advocate  handling  the suit  on behalf  of the party on  whose behalf  the affidavit  is sworn there is  absolutely no mistake  or error in the affidavit that can render  it defective.

Examining  the ruling  of  Honorable Nditika Principal Magistrate  made 28^th May 2012, I can’t help but fault the trial magistrate  for striking out  the  supporting affidavit  of Benson Kamunge  advocate.  The trial magistrate did not lay any basis   whether legal or factual, for striking out the said affidavit.  He simply stated:-

“I have considered the affidavits   and submissions.  I do note that the plaintiff’s affidavit is sworn by an advocate who is in conduct of the suit.  In this respect I strike the affidavit as was held in the case of Gerphas Alphonse Odhiambo vs Felix Adiego (2006) KLR”.

The trial magistrate  did not  make any reference  to those  paragraphs  that  he considered  unsuitable  to be sworn  by the  advocate  and neither  did he even set out  the principle  espoused  in the  Gerphas Alphose Odhiambo case. His ruling is as skeleton as I have  reproduced  above  concerning  the  objection  raised  on the  defective  affidavit.

In my view, in as  much as the  trial magistrate  in striking   out the  affidavit  was exercising  his discretion, that discretion must be  exercised  judiciously and a basis laid out.  No basis was laid for striking out the entire affidavit.

There  was no contention  that the  facts  deposed  to by the  advocate  could not  have been within  the advocate’s knowledge, being the advocate  having  the personal conduct of the suit on  behalf  of the deceased  plaintiff  since   its institution  in 2009.  In my  view, therefore, the trial  magistrate  acted  on wrong principles  of law  in striking  out the advocate’s affidavit.

Furthermore, there  is not law expressly  prohibiting an advocate  from swearing an affidavit  on behalf of his  client  in a client’s cause, on matters  which he as an advocate  has personal knowledge of, whether  informed  by his client  or arising  from the proceedings in the cause.

Under Order 19 Rule  3  of the Civil Procedure Rules:

3(1) “affidavits  shall be confirmed  to such facts  as the deponent   is able  of his own  knowledge to prove.”

The respondent did not, as I have  stated above, demonstrate  in the lower court  that the  said affidavit  of Mr Kamunge  advocate  offended  the best  rule evidence of Order 19 Rule 3(1) above.

Further, it is not shown  which of  the specific  matters  contained in the said affidavit  of Mr Kamunge advocate  would require  him to be cross examined  on under Order  19 Rule  2 of the  Civil Procedure  Rules, thereby offending  Rule 9  of the Advocates Practice  Rules and  or which of the matters deposed qualify  as being  scandalous, irrelevant or oppressive  to warrant  being struck  out under Order 19 Rule 6  of the Civil Procedure Rules.

In addition, it was never contended that the affidavit of Mr Kamunge advocate  contained  arguments  thereby being technically unsound.  

The only serious  objection by the respondent  to the affidavit  by Kamunge advocate  has been raised in this appeal  in the written submissions by the respondent, contending  that if the respondent  wanted to cross examine  the  appellant  on paragraph 8 of the  advocates  affidavit, it would  embarrass  the advocate as he  would not  be in a position to answer  questions on behalf of his client  regarding  where she lived, when she  knew about   the plaintiff’s death, when  she knew about the suit etc. In my view, that aspect  should have been raised before the trial court for determination and in any event, that alone  cannot form the basis for striking  out the whole affidavit  as the court below  and even this court as the  first appellate  court has  the  power to strike out  of the affidavit  specific paragraphs that are irrelevant, scandalous and offensive, not the entire affidavit without providing sound reasons for so doing.  It was also not contended that   paragraph 8 of the advocate’s affidavit was scandalous offensive or irrelevant.

Accordingly, I dismiss  that argument  by the  respondent raised  on appeal  and not  before the trial court  which  had the discretion to  strike out  that part of the  affidavit  that would be offensive  but instead struck out  the entire  affidavit. Furthermore, as  I have stated  elsewhere  in this judgment, the ruling by the trial  magistrate was  so scanty that one  cannot discern that there were some submissions  for  and against the “defective” affidavit.

In my view, it was not sufficient  for the trial  magistrate  to merely rely on the case  of Gerphas  Alphonse Odhiambo  which, as at 28^th May  2012 had been  overtaken by the provisions  of Sections 1A,1B of the Civil Procedure Act and Article  159 (2) (d) of the  Constitution, besides  other Court of Appeal decisions like KCF Co.Ltd vs Richard Akuesera Onditi CA  329/2009. In Kamlesh M.A. Pattni – Vs – Nasir Ibrahim Ali & 2 Others CA 354/2004, the Court of Appeal in dealing with a serious objection on the admissibility of an affidavit sworn by Senior Counsel Paul Muite held inter alia:

“... There is otherwise no express prohibition against an advocate who, of his own knowledge can prove some facts, to state them in an affidavit on behalf of his client, so too an advocate who cannot readily find his client but has information the sources of which he can disclose and state the grounds for believing the information...”

In other words, the mere fact that an affidavit was sworn by an advocate does not render it incurably defective.  See this court’s decision in HC Misc Application 621/2014 Factory Guards Ltd vs Abel Vundi  Kitungi  on the same subject  of an affidavit  sworn by an advocate representing  a party  in the subject suit.

In my most  considered  view, the application  before the trial magistrate  was hinged  on points of law namely, that where  a party to a suit dies, he or she  has to be substituted  where  the suit survives  the deceased and  secondly, where such   suit has abated, then an application for revival must be made  in the suit.

Mr Kamunge  was clear  in the  affidavit that he was authorized by the  applicant  who  was not yet  a party to  the suit, to swear  the affidavit on  her behalf  and that he was  conversant  with the facts  of the case.  The fact of being instructed  to  file the  suit by  the deceased plaintiff  and the fact that  his instructing client had since died  and one year had lapsed  since his  demise  hence the suit abating   are not matters which would fall outside  the knowledge  of an advocate who had had the personal conduct of the matter in question from its inception.

None of the matters of fact  that  were deposed  by Mr Kamunge  were  seriously contested  by the respondent and even  if they were, this court is enjoined to  do substantive  justice for the parties  as was stated in the case of  Kenya Commercial Finance Co. Ltd vs Richard  Akuesera Onditi CA 329/2009  where the Court of Appeal held that:-

“In many cases there will be alternatives which enable a case to be dealt with justly without taking the draconian step of striking out the case.  In applying the principle or concept  of  overriding  objective , each  case must be  viewed  on its own  peculiar  facts  and circumstances  and it would  be a grave mistake for  anyone to fail to  comply  with well settled  procedures  and when  asked why, to simply  wave before the court provisions of  Section 3A and 3B   of the Appellate  Jurisdiction Act (equivalent  of Section 1A and 1B  of the Civil Procedure  Act).  The court still retains  unqualified  discretion to strike  out  a record of  appeal or a notice  of appeal;  the  only difference  now is that the court has  wide powers  and will not automatically strike out, proceedings.  The court, before striking out, will look at the available alternatives.”

In this case, I am enjoined to give effect  to the overriding  objective of  Sections 1A and 1B  of the Civil Procedure Act in the  interpretation of its  provisions  and Rules  which include:

1. Just determination of the proceedings.
2. Efficient disposal of the dispute.
3. Efficient use of available judicial and administrative resources, and the timely disposal of the proceedings and at a cost affordable to the respective parties.

In the Kamlesh Pattni case(supra), the Court of Appeal also held that instead of striking  out  the whole affidavit, it went ahead  and struck out only  those paragraphs  in the affidavit of P. Muite (Senior Counsel)  which  were considered  scandalous, oppressive and irrelevant.

The respondent’s counsel submitted  in the court below  that the application was not only  sensitive  but also critical, and that  the matters  in issue could only be  better explained by the applicant  and  on which her alone would be  cross  examined and that by an advocate  swearing  an affidavit, raises  questions as to the applicants interest  in the suit.  Whereas  I accept the principle  espoused in Gerphas  Alphose  Odhiambo (supra) case by Honourable Waki JA, I also  note the distinction and persuasiveness  of that decision  to this instant  case by the careful words  used by the learned judge where he stated.  “………Ordinarily, an affidavit  should not be sworn by an  advocate  on behalf of his client or clerk  when those  persons are available to swear  and prove the  facts  of their  own knowledge.  In appropriate cases, such affidavits may be struck out or given little or no weight at all……..I will disregard the affidavit in that regard.”(emphasis added).

I note that  the learned judge  was  exercising  his judicial discretion in a  matter which  was  totally different  from the instant  case.  In this case, I am entitled   to exercise  the discretion in favour of the appellant, in the  interest  of justice, in a matter  where I  find  that the issue  being raised is one of procedural technicality in favour  of substantive justice as contemplated by Article 159 (2) (d)  of the Constitution, considering  that the above  decision  was made  before the  effective date  of Article 159(2) (d)  and Section 1A  and 1 B  of the Civil Procedure Act.

For the above reasons, I allow the appeal and set aside the order striking out the supporting affidavit sworn by Benson Wainaina Kamunge on behalf of the applicant/appellant.

The second issue for determination  is whether  the application dated  8^th  February 2012  filed by the appellant  in the lower court haD  any merit.  This court, as the first appellate   court is empowered  under  Section  78 of the Civil Procedure Act to among  others, rehear  the application  and arrive at  its  own conclusion , or  remit  it back to the trial court.  In this case, I exercise my discretion to determine   that application fully.  Albeit  the respondent  submitted  in the  lower court that the application  was  brought under  the  wrong provisions  of  the law, that  error in my view  does not  render  that application  defective  and I dismiss that argument as baseless.  The applicant  is indeed  expected  to cite  the correct provisions  of the law  but where she has either  failed  to cite  or  cited wrong  provisions, that is a procedural  technicality  curable  by Article  159 2 (d)  of the Constitution , Section 1A  and 1 B  of the Civil Procedure  Act and  order  Order 51 rule 10  which reads:

“51.  10.    (1)     Every order, rule or other statutory provision under or by virtue of which any application is made must ordinarily be stated, but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.

(2)     No application shall be defeated on a technicality or for want of form that does not effect the substance of the application.”

The above provisions are self explanatory that no application should be defeated on a technicality for want of form.

The respondent  also submitted  in the  lower court   that there  was no suit  in which the applicant could be substituted  or enjoined relying on  Mboroki M’ Arangacha (supra) case  by Honourable  Onyancha J, since the suit  had abated.

Under Order 24 Rule 1, no suit abates by a party’s death if the right survives. Under Rule 2, the death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives or continues.

Order 24 Rule 3 (1)(2)  of the Civil Procedure Rules states:-

“ 3 (1)  where one  of the two or more  plaintiffs  dies and the cause of action  does not survive  or continue  to survive  plaintiff  or plaintiffs alone, or a sole  plaintiff  or surviving  plaintiff  dies and the cause of action survives  or continues, the court , on an application made in that  behalf, shall cause the legal representative of the deceased plaintiff to  be made  a party and shall proceed  with the suit.

(2) where  within one year  no application  is made  under Subrule  (2)  the suit shall abate  so far as  the deceased  plaintiff  is concerned  and  on the application of the defendant, the court  may award  him the costs  which he  may have incurred  in  defending  the suit to be  recovered  from the estate of the deceased plaintiff.

Thus   where a sole  plaintiff dies and  the cause of  action like the one  herein  survives or continues, the court  on an application made in that behalf, shall cause  the legal representative of the deceased  plaintiff be made a party  in  the suit  and proceed  with  the suit.  Such application, however, must be made within one year of the death of the plaintiff and in default thereof, the suit abates so far as the deceased plaintiff is concerned.

In this case, the plaintiff died on 16^th June 2010 and the application to substitute him was lodged on 24^th February 2012, over one year and eight months.  By that time, the suit had abated hence the application to revive the suit which had abated.

The proviso to Order 24 Rule 3 (2) is to the effect that

“Provided the court may, for good reason on application extend the time.”

Under Rule 7, (effect of abatement or dismissal.

“ where  a suit  abates   or is  dismissed   under  this   order, no fresh suit shall  be brought  on the same cause  of  action.”

Rule 7 (2)  allows  a personal representative  of a  deceased  plaintiff to apply to  court to revive a suit which  has  abated  or to set aside  an order  of dismissal “ if  it is proved  that he  was prevented   by any sufficient  cause  from continuing  the suit, the court shall revive  the suit or  set aside such  dismissal  upon such terms  as to costs  or otherwise as it thinks fit.”

No doubt, the suit in the lower  court had  abated one year after  the  death  of the  deceased Joseph Mwangi  Gitau, since  no substitution of  his legal  representative  was done within one year  of his  death.  What therefore remained was of the legal representative to either   file an application under Rule 3 (2) for extension of time and or under Rule 7(2) for revival of suit.

The appellant did not  seek for  leave  to extend  time within  which  to  file  an application required  under Order  24  Rule 3(2).  She simply sought an order for substitution yet the time for applying for substitution had lapsed within one year of the plaintiff’s death.  In the application for substitution which was filed out of time without leave of court, she also sought revival of the suit.

In my view, both remedies  were  and are not  available  to the  appellant  for reasons that she  did  not seek  leave for extension  of time  within which to apply for  substitution  and secondly, she  could not apply  for revival of suit before  obtaining   leave to extend  the time for  applying  to be substituted  as it would only be  after her  application for substitution is allowed that  she could  now be properly  suited  to apply for revival of suit which had abated.

The wordings of Order  24 Rules  3 and 7  are clear  that “ on application”  The order  does  not give the  court the  power or discretion  to act suo moto.

Consequently, the appellant’s  application was  premature  and the learned trial magistrate ought to  have struck it out and  I proceed   and strike out  the appellant’s  application  for substitution  of the deceased plaintiff  and for revival  of the suit  which had  abated.

I would  not belabor   into whether  there are  good reasons or sufficient  cause to allow  that application for reasons that  the application before court  was premature   in that  no leave of court was being sought  to extend the time of filing  an application  to substitute  the deceased  plaintiff  before  the court   could even  consider whether  there  was  sufficient  cause for  failure to  substitute   in time leading to  the  abatement of  the suit.

The upshot of all the above is that this appeal is dismissed in its entirety.  Costs are in the discretion of the court.  In this case, as it  appears that  the appellant  had not even been enjoined  in the suit   as a substitute of the deceased  plaintiff and having relied  on the legal advice of the advocate  who, regrettably, did not analyze  the provisions  of  Order 24  before filing   the application and this appeal, I shall exercise  my discretion and spare her  the costs of the application  in the lower court and  this appeal.

Dated, signed and delivered in open court at Nairobi this 20^th day of July 2015.

R.E. ABURILI

JUDGE

20/7/2015

20/7/2015

Coram R.E. Aburili J

C.A:  Samuel

No appearance for appellant

No appearance for respondent

Court –Judgment read and delivered in open court in the absence of parties.  The Deputy Registrar to serve parties advocates   with notice that the judgment has been delivered. The judgment was to be delivered on 13^th April, 2015 but the court was on vacation and the Court Assistant, Ms Kavata intimates that she notified the parties of today’s date. Matter was also cause listed and posted.

 R.E. ABURILI

JUDGE

  20/7/2015