ITEMBE SENDI AND PAUL MARWA ITEMBE AND 1 Others VS ROBI MWITA MACHERA

BRIEF FACTS
1. The suit herein was instituted as an Originating Summons by which the Plaintiffs sought to be declared owners by way of adverse possession, land parcel No. Bukira/Buhiringera/191 and also an injunction against the then Defendant, Robi Mwita Machera (now deceased). The suit pitted members of the same family, with the 1st Plaintiff being a brother to the deceased and the 2nd and 3rd Plaintiffs being children of the 1st Plaintiff and therefore nephews to the Defendant. All of them resided in Komasimo in Kuria West. After sometime the suit proceeded to hearing and judgment was delivered in favour of the Plaintiffs. It triggered the instant application.
2. The Defendant/Applicant filed the instant application dated 28th May, 2024 seeking the following orders:
1. …Spent.
2. SOFIA MOGOSI GIBOMA, the Applicant herein and the Administrator of the estate of the late ROBI MWITA (deceased) do substitute the deceased herein as the Defendant.
3. …Spent.
4. THAT there be stay of execution of the decree dated 23rd April, 2024.
5. THAT the ex parte proceedings dated 2nd March, 2022, 4th February, 2022, 6th December, 2022, 23rd January, 2023 and 21st February, 2024 and all other consequential orders be set aside.
6. This matter be heard and further evidence be taken by the Applicant herein.
7. This matter be heard on merits.
8. The costs of this application be provided for.
3. The Application was based on grounds set out and supported by the Affidavit of SOFIA MOGOSI GIBOMA the Applicant herein sworn on 28th May, 2024.  In the grounds, she stated that she held letters of administration in respect to the Estate of Robi Mwita who died on 8th January, 2022 who was the Defendant in the instant case. She further stated that she was not aware of the existence of the present case. She added that she was served with an order to consolidate and transfer the estate to the Respondents’. She appointed her advocates on record who confirmed that there was a decree and execution had commenced.
4. She went on to add that the matter proceeded on 2nd March, 2022, 4th February, 2022, 24th October, 2022, 23rd January, 2023 and 21st February, 2024 when the Defendant was already deceased hence he was not served. She further stated that the Respondents were aware that the Robi Mwita had died but proceeded with the matter. She added that the Respondents did not apply to substitute the deceased or bring the same to the court’s attention. She urged the court to allow her do substitution and be heard on merit.    
Response
5. The 2nd Plaintiff filed his replying affidavit sworn on 1st July, 2024 wherein he averred that the application was an abuse of the court process. He averred that the deceased testified on 8th January, 2022 and judgment delivered on 27th April, 2023. He further averred that the judgment was in the execution stage which does not require substitution of deceased parties. He averred that the duty of the legal representative the Applicant herein was to satisfy the judgment obtained against the deceased’s estate. He added that there was no right of hearing or reply on an application for execution save in circumstances requiring notice to show cause.
Submissions
6. Counsel for the Applicant filed his submissions dated 30th July, 2024 where he gave a background of the case and relied on the provisions of Order 24 Rule 4 of the Civil Procedure Rules and the case of Egylne Chepchirchir Choge & Another V County Council of Trans-Nzoia [2022] eKLR. He further cited the Supreme Court case of V. Uthirapathi V Ashrab Ali & Ors and the case of Kenya Farmers’ Cooperative Union Ltd V Charles Murgor (deceased) t/a Kiptabei Coffee Estate (2005) eKLR. It was his  argument that the Respondent died on 18th January, 2022 and the matter proceeded ex parte and judgment entered on 27th April, 2023 a year after the Respondent’s death.
7. He submitted further that the suit had abated at the time judgment was entered thus the same was irregular thus null and void ab initio.
8. Counsel for the Respondent, on the other hand, filed his submissions dated 11th September, 2024 wherein he submitted that the issue in contention was not hearing of the suit but what preceded thereafter. He relied on Order 24 of the Civil Procedure Rules and submits that there exists no substitution of either parties in the event of death when the case is at its execution stage. It was his submission that it is trite law that a Grant of Letters of Administration Ad Litem should be applied for and obtained within 1 year after death of a party to a suit (which survives him or her). He added that the deceased died on 8th January, 2022 and the Applicant applied for the grant on 8th March, 2024 long after the 1 year had already lapsed.
9. Further, he argued that the Applicant failed to validate her lateness in obtaining of the Ad Litem Grant within the stipulated time period. Again, the Applicant had not been properly enjoined in the suit thus lacks the locus to address the court. He relied on the case of Julian Adoyo Ongunga V Francis Kiberenge Abano Civil Appeal No. 119 of 2015 which cited with approval the case of Otieno V Ougo & Another (1986-1989).
10. He submitted again that the Applicant failed to seek the court’s leave to be substituted as the legal representative in the suit. He also submits that even if the grant ad litem was extended, it would only be limited to the filing of the suit and prosecution of the same. He argues that since the case is at its execution stage, the Applicant does not hold the power to effect transfer of the property as per the judgment since she is not the administrator or executor of the deceased’s estate. Counsel cited Order 22 Rules 80-86 and added that the Judgment Debtor had the right to execute his decree without any obstruction. He urged the court to dismiss the application with costs.    
Analysis and Determination
11. This court has considered the application and is of the view that the main issue for determination is main issue for determination is whether the application is merited. Attendant to it is the issue of who to bear the costs of the application.
12. Order 24 Rule 4 of the Civil Procedure Rules sets out the procedure to be followed in case of death of a Defendant, where a cause of action survives them. The Plaintiff is the one to move the court to make a legal representative of the deceased person a party to the suit. Meanwhile before that is done the proceedings are stayed pending it to be fulfilled.
13. It is not in contention that the Defendant died on 8th January, 2022 as evidenced by the certificate of death. It is also evident from the (court) record that the Defendant last court attendance was on 29th November, 2021 wherein the court issued a hearing date on 2nd March, 2022. It is therefore not in dispute that as at the hearing date of 2nd March, 2022 wherein the Plaintiff’s counsel moved the court to close the Defence case, the Defendant had already passed on.
14. It is an undisputed fact, then, that the Court was moved to close the Defendant’s case her absence, her death notwithstanding. This Court has indicated in paragraph 1 that the parties herein were family members. They resided in the same area, in Kuria West. Thus, by the time the matter came up on that date when the case was closed in absence of the deceased the Plaintiffs knew well that their sister and aunt respectively had passed away. Perhaps her body had been interred around that time or slightly earlier or was yet to be interred as the case may have been.
15. That fact ought to have been brought to the attention of the Court so that it would note it and not to act further until substitution. For the Respondents to move the Court for the delivery of judgment in absence of, and without notice to, the deceased it was to steal a match against the departed. But this is impossible for human beings to do. Once someone dies, their file (of participation in earthly events) is closed until the Resurrection Day (John 5:28-29) when they will either be condemned or receive eternal life. The Holy Bible is even clearer elsewhere that when a person dies they know nothing, they have no part over what happens under the sun, they neither go to heaven (to rest in eternal peace) nor watch over the living. This is because, in Ecclesiastes 9:5, it is stated, "For the living know that they will die, but the dead know nothing; they have no further reward, and even their name is forgotten." Also, in Job 14:21, "His sons come to honour, and he knoweth it not; and they are brought low, but he perceiveth it not of them." Therefore, when Robi Mwita Machera died, she ceased to know what was taking place in her file in Court. She could not participate in the proceedings whether in bodily nature or by way of a ghosts for ghosts, if they operate, are demons that masquerade as the departed human beings. The Plaintiffs should have ceased the activities in the instant file until a legal representative of the deceased would have been appointed.
16. Order 24 Rule (4) (3) of the said Civil Procedure Rules provides that if the application for substitution is not made within a year, the suit abates as against the deceased Defendant. In view of the above, the suit against the Defendant abated by operation of the law on 8th January, 2023. It is evident that on 18th July, 2022, 24th October, 2022, 6th December, 2022 and 23rd January, 2023 the court directed that notice be served upon parties including the Defendant who was acting in person, then deceased. It is this court’s view that the only way the Defendant could be served was through his legal representative, the Applicant herein who had not come on record.
17. It is worth noting that the Respondents contended through the Replying Affidavit that the matter proceeded on 8/01/2022 when the Defendant testified and called her witnesses. That is far from the truth. The record shows that the Defendant testified about four years before she died. She testified on 24/09/2018. She called her second witness, DW1, one Lucas Mwita Machera, on 04/12/2019. After that the matter could not proceed for one reason or other, including the judge being transferred and the matter being taken over by a new Judge. It could only proceed, with the closure of the Defence case on 2/03/2022 by which time the Defendant had died, but not substituted.
18. Further, Order 24 Rule 7(2) of the Civil Procedure Rules provides that a person claiming to be a legal representative of a deceased Plaintiff may apply to revive a suit which has abated and the court can grant the order if it is proved that the person was prevented by sufficient cause from continuing the suit. In the instant case, the intended Applicant has moved the court and explained the reason for the delay in filing the present application was that she was not aware of the case. It is not in contention that judgment was delivered on 23rd April, 2023 when the suit had already abated. It means that there was no suit in which the judgment could be delivered. It, therefore, is my view that the judgment was irregular and arrived at based on a non-existent suit. It is a nullity. It cannot not stand.
19. Consequently, I find that the instant application is with merit. I therefore allow it as prayed, save that the prayer No. 2 cannot be granted because substitution cannot be made in a suit that abated and remains as such. It can be made only where the suit is revived. Herein there is no prayer for the revival of the suit; prayers 6 and 7 can only be actualized if the suit is revived.
20. The upshot is that the judgment date 23rd April, 2023 is hereby set aside. Also, the proceedings of 2nd March 2022 and the subsequent ones were irregular and are set aside. The suit is marked abated with costs to the Defendant as that was the position at 08/01/2023. The file is closed, subject to payment of costs ordered.
21. It is so ordered.
Ruling dated, signed and delivered via the Teams Platform this 25th day of March 2025.