MARY NJOKI KUNGU(SUING AS THE LEGAL REPRESENTATIVE OF EUNICE WAITHERA KUNGU-DECEASED VS JAMES KATHENGE KITHEKA AND JOHNSON KITHEKA KATHENGE AND 1 Others

1. The Applicant filed a Notice of Motion application dated 19th of February 2024 seeking the following orders:
1. Spent
2. THAT this Honourable Court be pleased to grant leave to the Applicant to lodge an Appeal out of time against the judgment of the Hon. D.W Mburu-SPM delivered on 11th December 2023 in Kitui Chief Magistrate’s Court MC ELC No.6 of 2015.
3. That the draft Memorandum of Appeal be deemed to have been duly filed upon payment of the requisite fees.
4. THAT the costs of this application be provided for.
2. The application is supported by the affidavit of the Applicant who is the legal representative of the estate of Eunice Waithera Kungu (Deceased), who was the 1st defendant before the trial court in Kitui Chief Magistrate’s Court MC ELC No.6 of 2015. She deposed that she was aggrieved by the judgment in Kitui Chief Magistrate’s Court MC ELC No.6 of 2015 delivered on 11th December 2023 by the Ho. D. W. Mburu SPM. Being dissatisfied by the judgement of the trial court, the Applicant wishes to appeal to this court. However, the statutory period for filing an appeal has already lapsed necessitating the filing of this application.
3. The claim before the trial court was filed by the 1st and 2nd respondents herein against the Applicant’s mother Eunice Waithera Kungu and the 3rd Respondent claiming land parcel Kisasi/Nguuni/1262. Unfortunately, the Applicant’s mother passed away on 8th July 2017 during the pendency of the suit. The Applicant was subsequently issued with a limited grant of letters of Administration in the Senior Magistrates Court at Ruiru vide Succession Cause No. 5 of 2020.
4. The Applicant deposed that to the best of her knowledge, her mother was never served with any court pleadings in relation to this suit and she was not aware of any proceedings against her mother until the time she was informed of the judgement by the 3rd Respondent.  She claims that the delay in filing the appeal was not inordinate or intentional.
5. The Applicant perused the Trial Court file and learnt that the initial judgment in this suit was delivered ex-parte on 10th July 2020 after the demise of her mother was set aside on application of the 2nd defendant, who was granted leave to file his defence on 9th June 2021.
6. The Applicant avers that no effort was made by the Plaintiff to effect service and/or make an application for substitution on account of the demise of her mother. She deposes that as the legal representative of the 1st defendant, she should have been afforded an opportunity to be heard in the trial court.
7. Further, the Applicant deposed that she has a good appeal that raises triable issues and annexed a copy of the draft memorandum of appeal.  It is her view that the Respondents will not suffer any prejudice if the orders sought are granted and that the orders sought are in the interests of justice.

1st and 2nd Respondents’ Grounds of Opposition
8. The 1st and 2nd Respondents filed grounds of opposition dated 29th April 2024,  relying on the following grounds:
1) THAT the application is bad in law, incompetent and improperly before Court, an abuse of due process of the court and law.
2) THAT the applicant is not a legal representative of Eunice Waithera Kungu, the 1st defendant in MC ELC No.6 of 2015-James Kathenge Kitheka & another v. Eunice Waithera Kungu & Another as envisaged under Order 24 rule 4 of the Civil Procedure Rules.
3) THAT the 1st defendant, Eunice Waithera Kungu(deceased), admittedly having passed on the 8th of July 2017, and there having been no application made under Order 24 rule 4 of the Civil Procedure Rules, then the suit against the 1st defendant abated hencefore, there is no suit surviving as against the 1st defendant in any proceedings relating to MC ELC No.6 of 2015.
4) THAT the 1st defendant and the applicant herein for that matter, were not parties to proceedings giving rise to the judgment dated 11th December 2023 in MC ELC No.6 of 2015, henceforth this application is misconceived.
9. The 1st and 2nd Respondents therefore prayed that the application be struck out with costs.


The Applicant’s Submissions
10. Counsel for the Applicant submitted that the deceased   passed away prior to the exparte judgment delivered on 10th July 2020 judgement was later set aside. The Applicant claims that the subject property was owned by the deceased and leased to the 3rd respondent and as such the outcome of the judgment would mean that the estate of the deceased would suffer loss without the deceased through her legal representative being heard.
11. The Applicant submitted that there has not been undue and inordinate delay on her part and relied on the authority of Sokoro Savings and Credit Co-operative Society Limited Vs Mwamburi (Civil Application E032 of 2022) (2023) KECA 381(KLR)
12. It is submitted that the decision on whether to allow such an application is discretionary, as stated in Dakawou Transporters Limited v National Land Commission & 3 others [2021] eKLR.
13. The applicant’s submission is that she has shown satisfactory reasons for the delay and that it is in the interest of justice that the court allows the applicants to have their day in court and a chance to be heard as provided under Article 50 of the Constitution. She further submits that the respondents have not demonstrated that they will suffer any prejudice if the extension is granted.

The 1st and 2nd Respondent’s Submissions
14. Counsel for the 1st and 2nd Respondents submitted that the undisputed facts of this matter are that the suit in the trial court was initially filed in 2015 as against the Applicant's mother but unfortunately, she passed away on 8th July 2017. Counsel quoted Order 24 rules 4(1), (2) and (3) of the Civil Procedure Rules on the abatement of the suit.
15.  Submitting that according to the said provisions, there was no suit or proceedings against the 1st defendant in the lower court that could constitute an application for leave to appeal out of time, since the 1st defendant was no longer a party.
16. It was further submitted that the Applicant herein did not seek leave to apply for extension of time to substitute the 1st defendant after the lapse of one year. Further that she did not seek to revive the abated suit as per Order 24 rule 7(2) of the Civil Procedure Rules.
17. Finally, Counsel highlighted that the applicant did not apply to be made a legal representative of the deceased 1st defendant in the suit before the lower court, and thus cannot represent her in those proceedings and is a total stranger who lacks locus standi in this suit.

Analysis and Determination
18. The Application at hand was brought pursuant to Sections 1A, 3A and 79G of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules 2010. The trial Court delivered judgement on 11th December 2023, while the present application, which seeks leave to lodge an appeal out of time was filed on 20th February 2024.
19. Section 79G of the Civil Procedure act provides for the time for filing appeals from subordinate courts and states that;
“Every appeal from a subordinate court to the High Court shall be filed a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

20. The Applicant claims that her late mother, Eunice Waithera Kungu(Deceased) who was named as the 1st defendant in Kitui Chief Magistrate’s Court MC ELC No.6 of 2015 died on 8th July 2017 was never served with the court documents and thus was not given a chance to be heard. She exhibited grant of letters of administration ad litem to the estate of Eunice Waithera Kungu (deceased) issued to here on 13th March 2020, specifically for the purpose of filing a suit at the Environment and Land Court.
21. From the Judgment of the trial court dated 11th December 2023, the Trial Magistrate observed that initially interlocutory judgement was entered against the defendants on 25th February 2015 and the suit proceeded for formal proof and judgement was entered in 10th July 2020. The exparte judgment was set aside at the instance of the 2nd Defendant who was granted leave to file his defence on 9th June 2021. The suit proceeded for hearing and final judgement entered on 11th December 2023.
22. The Respondent’s opposed the application and argued that the applicant is not a legal representative of Eunice Waithera Kungu, the 1st defendant in MC ELC No.6 of 2015-James Kathenge Kitheka & Another –vs- Eunice Waithera Kungu & Another as envisaged under Order 24 rule 4 of the Civil Procedure Rules. They claim that since the 1st defendant, Eunice Waithera Kungu (deceased), admittedly passed on the 8th of July 2017, and there having been no application made under Order 24 rule 4 of the Civil Procedure Rules, then the suit against the deceased abated and there is therefore no suit surviving as against the 1st defendant in any proceedings relating to MC ELC No.6 of 2015.
23. The respondents claim that the deceased and the applicant herein were not parties to proceedings giving rise to the judgment dated 11th December 2023 in MC ELC No.6 of 2015, therefore this application is misconceived. Counsel for the 1st and 2nd  Respondents argues that the suit had abated as against the deceased and since it was not revived, the Applicant herein has no locus standi as per Order 24 rule 4 of the Civil Procedure Rules which provides that:
“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.
24. The Court of Appeal in the case of  Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others [2017] eKLR  held that;
“Where a suit abates, no fresh suit can be brought on the same cause of action because it is extinguished and cannot be maintained in the form it was originally presented. Because the suit will only abate where, within one year of the death of the plaintiff no application is made to cause the legal representative of the deceased plaintiff to be joined in the proceedings, it is imperative and we may add, logical, where the legal representative is not so joined within one year, that an application be made for extension of time to apply for joinder of the deceased plaintiff’s legal representative. It is only after the time has been extended that the legal representative can have capacity to apply to be made a party.”
25. In this case it has been admitted by the Respondents herein that they as plaintiffs in the suit before the trial court did not make an application to revive the suit and seek to substitute the deceased, 1st defendant with, the legal representative to her estate. They have further admitted that at the lapse of one year since the death of Eunice Waithera Kungu on 8th July 2017 their claim against her lapsed and the suit abated by operation of the law.
26. It is also noted that the Applicant herein does not claim to have applied to revive the suit against the deceased and to be allowed to replace the deceased as a defendant in the suit.
27. There was therefore no existing cause and/or suit against the 1st Defendant by the time the judgment was delivered by the Trial Court since the suit against the deceased abated. The above being the argument advanced by the Respondents,  which the court agrees with it is interesting to note that the trial court’s final judgement entered on 11th December 2023 was against both defendants jointly and severally.
28. Notwithstanding the finding of the trial court in its judgment, the Court is of the view that under Order 24 Rule 4 of the Civil Procedure Rules, it was open to the Applicant herein to make an application to substitute the deceased in the suit as the administrator to the estate if she was of the view that the interests of the deceased’s estate would have been best served by the Administrator of the estate being joined as a party to the suit.
29. Section 82 of the Law of Succession Act grants powers of personal representatives to enforce rights by way of suit and states that;
Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers—
(a) to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;
30. The Applicant was granted powers under the limited grant of letters of administration issued on 13th March 2020 to defend the interests of the deceased’s estate yet to date she has not applied to be joined as a party to the primary suit before the trial court.
31. The Court agrees with the argument by the Respondents Counsel that the Applicant herein lacks the requisite locus standi to lodge an appeal or make the present application for leave to lodge an appeal out of time as administrator of the estate of the deceased Eunice Waithera Kungu when she was not a party to the primary suit before the trial court.
32. In the case of Law Society of Kenya Vs Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000, the Court held that ;-
“Locus Standi signifies a right to be heard, A person must have sufficiency of interest to sustain his standing to sue in a Court of Law”.
33. From the foregoing, the court finds that the application dated 19th February 2024 lacks merit, and the same is hereby dismissed with costs to the Respondent.
Delivered, dated and signed at Nyeri this 13th   day of March 2025.