Background
1. The petitioner filed a suit before the Senior Principal Magistrate’s court Iten case No 27 of 2020 against the 1st to 9th respondents. In response, the defendants filed a joint statement of defence and a notice of preliminary objection. One of the grounds in the preliminary objection was that the petitioner lacked locus standi to bring the suit on behalf of the estate of a deceased person.
2. On 20th September 2021, the trial court upheld the preliminary objection and in dismissing the suit stated;
‘l therefore find that the preliminary Objection raised by the defendant has merit. The plaintiff has no locus standi to bring the suit on behalf of the estate of the deceased as she did not obtain a grant of representation……the suit filed by the plaintiff is hereby dismissed with costs to the defendants’
3. Aggrieved by the decision, the petitioner filed appeal No. 40 of 2021 in Eldoret Environment and Land court which was transferred to Iten Environment and Land court after the court was established.
4. This court delivered judgment in the appeal on 8th May, 2024. In dismissing the appeal, the court held in part:
“…Having instituted the suit without compliance with the law, the plaintiff cannot be heard to complain that the learned trial magistrate erred when she dismissed her suit with costs to the defendants. The suit having been filed contra statute, it was not only bad in law but also fatally defective. The issue of want of capacity to sue on behalf of the estate of a deceased person is not a procedural technicality which could be cured by way of amendment of the suit…”
5. During pendency of the appeal, the petitioner filed this petition on 27th May, 2022. After delivery of judgement in the appeal, the petitioner filed the notice of motion dated 27th October 2022 seeking to amend the petition on grounds that the petitioner had obtained grant of letters of administration ad litem on 20th December 2021 before the petition was filed.
6. When the application came for inter parties hearing on 16th January 2025, the petitioner and her counsel did not attend court to prosecute the application and the application was dismissed for non-attendance.
The Application
7. The applicant in a bid to have the application for amendment of the petition reinstated, filed the application under consideration dated 20th February 2025 seeking to set aside the order dismissing the application dated 27th October 2022 and in place reinstate the application.
8. The application is based on the grounds set out on its face and supporting affidavit of Rukia Kimoi Murei sworn on 20th February, 2025 who deposes that she and her advocate were not aware that the application was coming for inter parties hearing on 16th January, 2025. It is her contention that if the orders sought are granted, the respondents will suffer no prejudice and urges the court to allow the application in the interest of justice.
9. The application is not opposed. Even so, this court has a duty to look into the merits of the application as observed in the case of County to County Choma Grill Limited v Joyce Wangui Wachira T/A Paddy Distributors (2024) KEELC 887 (KLR) citing the Supreme Court case of Konchellah v Sunkuli & 2 Others (2018) KESC 58 (KLR).
Analysis and determination
10. I have carefully considered the application and the affidavit filed in support, and I find the sole issue for the court's determination to be whether the applicant has made up a case for being granted the orders sought or any of them.
11. Courts have discretion under Order 12 Rule 7 of the Civil Procedure Rules to set aside or vary the judgment or order upon such terms as may be just. See the case of Shah v Mbogo [1967] EA 116 at 123B, where the court stated; -
“The discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.”
12. In applying the law and cited authority to the circumstances of this case, I find the petitioner /applicant’s reason for not attending court on 16th January 2025 not convincing. In paragraph 8 of her supporting affidavit she states;
“That I was not aware that this matter was in court on 16-1-2025 and/or I also heard that my counsel in record was not aware that this matter was in court on 16-1-2025.”
13. I have perused the court record and noted that on 5th December 2024 when the application was fixed for inter parties hearing on 16th January 2025, Counsel for the petitioner was present in court while the respondents were absent.
14. It is the view of this court that the applicant is dishonest, is not serious in prosecuting this petition and is trying to mislead the court that they were not aware of the hearing date for the application. Such a habit should be frowned upon as stated in the case of Shihua Industry Alliance Limited v Liu & 3 others (Civil Suit 65 of 2022) [2023] KEHC 27083 (KLR) (13 December 2023) (Ruling).
15. Even if the applicant had a satisfactory explanation why her advocate did not attend court, the grant of letters of administration ad litem annexed to the application dated 27th October 2022, issued to the petitioner on 20th December 2021, were limited to prosecuting Eldoret ELC Civil Appeal No. 40 of 2021. As it stands, the petitioner does not have Locus standi to bring the petition on behalf of the estate of the deceased.
16. All in all, the court finds the application devoid of merit and dismisses it with no orders as to costs as it was undefended.
17. Orders accordingly.
Dated, signed and delivered virtually this 11th June, 2025.
Ruling delivered virtually in the presence of:
Mr. Cheptarus for the petitioners
N/A for the 1-9th Respondents
Court Assistant: Christine