1. The application dated 13th May, 2025 filed under section 3 and 3A of the Civil Procedure Act, Order 24 Rule 1 and 4 and Order 51 of Civil Procedure Rules, 2010 and all enabling provisions of the Law seeks the following orders;
1) That this Honourable court be pleased to revive and or reinstate the suit for or against the 1st Defendant (1st Plaintiff in then counterclaim), CHESAINA BARSAGAN, now Deceased.
2) That upon such revival of the suit this Honourable court be pleased to substitute to substitute the said CHESAINA BARSAGAN, Deceased with one REUBEN KIPROP BARSIGAN, the Legal Representative of the deceased estate.
3) Costs be in the cause.
2. As can be discerned from the grounds on the face of the application and affidavit in support thereof, sworn by Rueben Kiprop Barsigan on 13th May 2025, the application is premised on the grounds that the 1st defendant who is the father to the applicant, passed away on 10th January 2022 before the suit could proceed for hearing but after he had filed a defence and counterclaim; that he has now obtained Letters of Administration Ad Litem for purposes of representing the estate of his deceased father; that by the time he obtained Letters of Administration Ad Litem, one year had passed and the suit against the 1st defendant had abated. He urges the court to allow the application, revive the suit and counterclaim against the 1st defendant and substitute him in place of his deceased father to enable him represent the interest of his estate as no prejudice shall be occasioned to the plaintiff.
3. The application is not opposed.
4. I have considered the application, the grounds and the affidavit in support and I find the sole issue for the court’s determination to be whether the applicant has met the threshold for substitution and reinstatement of the abated suit.
5. The effect of death of a defendant with a pending suit is as provided for under Order 24 rule 4 of the Civil Procedure Rules.
(1) Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant 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 defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant.
6. The effect of abatement or dismissal of a suit is as provided for under Order 24, rule 7 of the Civil Procedure Rules.
(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the trustee or official receiver in the case of a bankrupt plaintiff may apply for an order to revive a suit which has abated or to set aside an order of dismissal; and, 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.
7. In the case of Mwavula v Bayusuf & 3 others, Environment & Land Case 176 of 2004, Kibunja J while citing with approval the Court of Appeal decision in Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others [2017] eKLR, held as follows; ‘Under Order 24 Rule 3 of Civil Procedure Rules, the legal representatives of the deceased ought to have made the application for substitution within a year of his death, that is by April 21, 2022. The substitution is made once the legal representatives are granted letters of administration. In this suit, no such application was filed within one year of the plaintiff’s death. It is not disputed that in this case, the plaintiff’s legal representatives were issued with the letters Ad Litem on February 21, 2022, which was nine (9) months and twenty-one (21) days after his demise. There is no reason tendered why the application for substitution was not made before the expiry of one year from the date of the death of the plaintiff. The suit abated on or about the April 21, 2022, a year after the death of the plaintiff with no substitution having been made.….………. c. Where a suit has abated, a legal representative, as an applicant, has three steps to take; first to seek to extend the time for making an application for substitution; secondly to be substituted and be joined in the suit in place of the deceased party, and lastly seek to reinstate the suit. The Court of Appeal pronounced itself on this in the case of Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others [2017] eKLR, where it held that; “It is only after the time has been extended that the legal representative can have the capacity to apply to be made a party. Order 24 must be construed by reading it as a whole and the sequence in which it is framed must be followed without short-circuiting it. The proviso to rule 3(2) to the effect that the court may, for good reason on application, extend the time goes to show that without time being extended, no application for revival or joinder can be made. It is the effluxion of time that causes the suit to abate. It is that time that must, first be extended. Once time has been enlarged, only then can the legal representative bring an application to be joined in the proceedings. Again it is only after the legal representative has been joined as a party that he can apply for the revival of the action… (emphasis mine) After time to apply has been enlarged and the legal representative has been joined, the focus and burden shifts to him to show cause why the abated suit should be revived. A prayer for the revival of the suit cannot be allowed as a matter course or right. If the applicant demonstrates and the court is satisfied that he was prevented by any sufficient cause from continuing the suit, the court will allow the revival of the suit upon such terms as to costs or otherwise as the court may think fit.”
d. The applicants before the court have not sought for an order of extension of time under Order 24 Rule 3 (2), which empowers the court to extend the time within which an application for substitution can be brought to court. The rule provides that;“Where within one year no application is made under sub rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff. Provided the court may, for good reason on application, extend the time.” The court cannot deal with the prayer for the suit to be reinstated before, the substitution of the deceased plaintiff is dealt with. Moreover, the substitution of the deceased plaintiff cannot be done where the application is filed outside the timeframe of one year, unless the time set out for making that substitution is extended by the court. This application has not sought for leave of court to extend the one-year period set out for an application of substitution to be done. The prayers for extension of time, substitution and reinstatement of an abated suit may be sought for in one application so long as an applicant sets them in the proper sequence.’ (Emphasis mine)
8. In applying the cited decisions to the circumstances of this case, under Order 24 rule 7 of the Civil Procedure Rules, the legal representative of the deceased 1st defendant ought to have made an application for substitution within one year of his death. Letters of Administration ad Litem were issued to Reuben Kiprop Barsigan on 22nd July 2024 more than two years after the 1st defendant’s death on 10th January 2022. No reason has been given why the application for substitution was not made before the expiry of one year from the date of death of the 1st defendant. The suit abated on or about the 10th January, 2023 a year after the death of the defendant with no substitution having been made.
9. The instant application has been filed outside the timeframe of one year but the applicant has not sought for leave to extend the one year period set out for an application for substitution. As stated in the case of Mwavula v Bayusuf & 3 others supra, where a suit has abated, a legal representative as an applicant, has three steps to take; first to seek to extend the time for making an application for substitution; secondly to be substituted and be joined in the suit in place of the deceased party, and lastly seek to reinstate the suit. The prayers for extension of time, substitution and reinstatement of an abated suit may be sought for in one application so long as an applicant sets them in the proper sequence.
10. Having failed to apply for extension of time, l find the application devoid of merit and strike it out with no order on costs as the application was not defended.
11. I have also noted some irregularities in representation of the 2nd to 4th defendants. The firm of Kipnyekwei & Company Advocates who were initially representing all the defendants, filed an application to cease acting for the 2nd to 4th defendants which application was allowed on 30th January, 2023. The above notwithstanding, the firm of Kipnyekwei & Company Advocates continued representing the 2nd to 4th defendants without coming on record afresh. As far as this court is concerned, the 2nd to 4th defendants remain unrepresented. If the firm of Kipnyekwei & Company Advocates have fresh instructions to represent the 2nd to 4th defendants, they should move the court in the appropriate manner.
12. Orders accordingly
Dated, signed and delivered Virtually at Kabarnet this 16th day of June, 2025.
In the absence of both the Plaintiff and Defendants
Court Asst. Lilian.