1. The Applicant approached this court through an application dated 16 th March, 2024 seeking interalia stay of execution of Judgment and/or Decree of 14 th February, 2024 in Nyahururu CMCC No. 45 of 2022 by Hon. Keago CM and all consequential orders arising therefrom pending hearing and determination of an intended appeal; an application that was dismissed on 9 th May, 2024, by Ndung’u J. for want of prosecution.
2. Subsequently, the Applicant filed an application dated 24 th May, 2025 seeking orders thus;
1) Spent.
2) Spent.
3) This honourable court be pleased to grant an order of stay of execution of the judgment delivered on 14 th February, 2024, and all consequential orders arising therefrom pending the hearing and determination of the appeal.
4) That this honourable court be pleased to reinstate the Applicant’s application being High Court Misc. Applicant No. E003 of 2024 which was dismissed on 9 th May, 2024.
5) This honourable court be pleased to issue any other order at it may deem just, appropriate and expedient in the interest of justice.
6) That cost of this application be in the cause.
3. The application is premised on grounds that when the matter came up on 9 th May, 2024, the Applicant’s counsel was logged into the platform but they experienced power interruption which delayed him to log into the virtual platform.
4. That they sent their court clerk to file submissions per the previous directions but to their surprise learnt of dismissal of the application. That failure to attend to the matter was inadvertent.
5. The application is opposed by John Ndung’u Njuguna the Respondent’s advocate dated 20 th March, 2025, where he avers that the application is fatally defective, a non-starter and an abuse of the court process as the Respondent is deceased.
6. That the application having been dismissed the court is functus officio hence the Applicant should have appealed. And, without prejudice to the foregoing, it is urged that no reason has been given for non-compliance with the court order in respect of filing of submissions and that the Applicant is not a serious litigant.
7. The application was disposed through written submissions. The court has taken into consideration the application, affidavit in support and opposition and the rival submissions.
8. The intended appeal was to be filed in Nyahururu CMCC 45 of 2022 where the Respondent was the Plaintiff. Judgment in the matter was stated to have been delivered on 14 th February, 2024. Annexure JNN – 1 is a death certificate not disputed for Geoffrey Muhia Muchiri who died on 5 th October, 2023 meaning that the case was proceeding against a dead person in the lower court.
9. Order 24 Rule 3 of the Civil Procedure Rules provides thus;
(1) Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole 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 (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.
10. On appeal, the appeal against a Respondent does not abate, but, there is need for a legal representative to take the place of the deceased. Proceeding on appeal without substitution of a deceased would be a nullity.
11. In Benjamin Leonard Mcfoy v United Africa Company Limited [1961] AU ER 1169 it was held that;
“if an act is void then it is in law a nullity and not a mere irregularity. It is not only bad but incurably bad. There is no need for an order to set aside. It is automatically null and void and without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse…….”
12. The Respondent herein having died in the course of the lower court proceedings and before the application for institution of the appeal that was dismissed which the Applicant seeks to reinstate, the application would not see the light of the day.
13. The upshot is that the application which was a nullity ab initio is struck out.
14. It is so ordered.
HCC MISC. APP. E003 OF 2024 (RUL.) Page 2 of 2
2. Subsequently, the Applicant filed an application dated 24 th May, 2025 seeking orders thus;
1) Spent.
2) Spent.
3) This honourable court be pleased to grant an order of stay of execution of the judgment delivered on 14 th February, 2024, and all consequential orders arising therefrom pending the hearing and determination of the appeal.
4) That this honourable court be pleased to reinstate the Applicant’s application being High Court Misc. Applicant No. E003 of 2024 which was dismissed on 9 th May, 2024.
5) This honourable court be pleased to issue any other order at it may deem just, appropriate and expedient in the interest of justice.
6) That cost of this application be in the cause.
3. The application is premised on grounds that when the matter came up on 9 th May, 2024, the Applicant’s counsel was logged into the platform but they experienced power interruption which delayed him to log into the virtual platform.
4. That they sent their court clerk to file submissions per the previous directions but to their surprise learnt of dismissal of the application. That failure to attend to the matter was inadvertent.
5. The application is opposed by John Ndung’u Njuguna the Respondent’s advocate dated 20 th March, 2025, where he avers that the application is fatally defective, a non-starter and an abuse of the court process as the Respondent is deceased.
6. That the application having been dismissed the court is functus officio hence the Applicant should have appealed. And, without prejudice to the foregoing, it is urged that no reason has been given for non-compliance with the court order in respect of filing of submissions and that the Applicant is not a serious litigant.
7. The application was disposed through written submissions. The court has taken into consideration the application, affidavit in support and opposition and the rival submissions.
8. The intended appeal was to be filed in Nyahururu CMCC 45 of 2022 where the Respondent was the Plaintiff. Judgment in the matter was stated to have been delivered on 14 th February, 2024. Annexure JNN – 1 is a death certificate not disputed for Geoffrey Muhia Muchiri who died on 5 th October, 2023 meaning that the case was proceeding against a dead person in the lower court.
9. Order 24 Rule 3 of the Civil Procedure Rules provides thus;
(1) Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole 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 (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.
10. On appeal, the appeal against a Respondent does not abate, but, there is need for a legal representative to take the place of the deceased. Proceeding on appeal without substitution of a deceased would be a nullity.
11. In Benjamin Leonard Mcfoy v United Africa Company Limited [1961] AU ER 1169 it was held that;
“if an act is void then it is in law a nullity and not a mere irregularity. It is not only bad but incurably bad. There is no need for an order to set aside. It is automatically null and void and without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse…….”
12. The Respondent herein having died in the course of the lower court proceedings and before the application for institution of the appeal that was dismissed which the Applicant seeks to reinstate, the application would not see the light of the day.
13. The upshot is that the application which was a nullity ab initio is struck out.
14. It is so ordered.
HCC MISC. APP. E003 OF 2024 (RUL.) Page 2 of 2