1. What was before the subordinate court was Kilungu (MCDC) Matrimonial Cause No. E001 of 2020.
2. The trial court delivered its judgment on 6/8/2021 where the following directions were made:
a) A declaration is hereby made that the petitioner and the respondent were legally married.
b) A declaration is hereby made that the land known as KONZA NORTH/KONZA NORTH BLOCK 2(MALILI)/ 1308 is a matrimonial property belonging to the family of respondent including the petitioner.
c) An order is hereby issued barring any transfer or alienation of any of the part of the aforesaid land until property distribution is done either as a matrimonial cause or inheritance, though the same must be done equitably.
d) An order directing the Land Registrar, Makueni to sub divide the said land equally between the petitioner and the respondent is denied.
e) Every party shall meet their own costs.
3. A memorandum of appeal was filed on 3/9/2021 against the judgment.
1) That the learned magistrate misdirected himself when he held that there was a valid marriage between the parties herein when there was no evidence of marriage and none of parties prayed or requested for the said issue to be determined.
2) That the learned magistrate erred in law and in facts when he failed to find that elements of Kamba customary marriage had not been established.
3) That the learned magistrate erred in law when he failed to consider the evidence of the appellant and instead assisted the case of the respondent to prejudice of the appellant.
4) That the learned magistrate erred when he ruled as against the evidence and facts by the court.
5) That the learned magistrate erred in law and in fact failing to find that there was no marriage between parties herein and hence was not entitled to any property.
6) That the learned magistrate erred when he found that the suit property was a matrimonial property when there was no evidence to support the same.
4. The record of appeal was filed on 16/2/2023.
5. On 8/5/2023 a Notice of Motion of the same date was filed brought under Order 24 and Order 51 Rule 1 of the Civil Procedure Rules seeking an order to have the appeal struck out on account of abating by operation of law. The main ground was that the appellant passed on 28/12/2021 as per the annexed certificate of death.
6. The applicant deponed that the appeal had abated on 28/12/2022 automatically by operation of the law.
7. I did not see any response to the application – but on 23/6/2023 – there is another Notice of Motion under order 24 Rules 4 and 7 of the Civil Procedure Rules and section 47 of the Law of Succession Act (LOSA), rule 73 of the P&A rules.
8. The applicant seeks that the suit be revived and the appellant be substituted with Jones Munyao Mutua – the son of, and legal representative as per the Grant of Letters of Administration Ad Litem dated 19/6/2024 obtained vide Misc.Succession Cause E035 of 2023.
9. The application is opposed vide the replying affidavit of the respondent – sworn on 18/8/2023 to the effect that the application does not meet the requisite threshold for substitution.
10. The application was heard orally.
11. Mr. Kilonzi for the applicant in the application dated 8/5/23 to the effect that there has been no substitution in three years vide Order 24 Rule 3(2) of the Civil Procedure Rules – That the application was not opposed, there were no Grounds of Opposition vide Order 5 Rule 14.
12. On the application dated 22/6/2023 it is argued that the orders sought can only be granted for sufficient reason as per Order 24 Rule 7(2). That the supporting affidavit does not provide any explanation or reason at all why the substitution was not made in 10 months. The court was referred to John Macharia Mwenda –vs- Luka Njara Kamau & 2 Others [2016] eKLR, where the court upheld the position that revival is not automatic and there must be sufficient reasons.
13. Mr. Tamata for the applicant for substitution submits that the applicant has not been brought after 3 years that applicant died in 2021, application was filed in 2023 – that the file had been mentioned severally for substitution. That the respondent would not suffer any prejudice.
14. Order 24 of the Civil Procedure Rules is about death of parties to a suit. Order 24 Rule 9 to apply to Appeals’ It states
Order 24 Rule 3 provides;
Procedure in case of death of one of several plaintiffs or of sole plaintiff [Order 24, rule 3.]
(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.
16. Order 24 Rule 3 applies to the appellant where the appellant dies and within one year no application is made to substitute the legal representative of the deceased – the appeal shall abate and the respondent may be awarded costs.
17. The court is however empowered to extend time upon good reason.
18. The effect of abatement is pointed out at Order 24 Rule 7 and the court is also empowered to revive the suit for sufficient cause. It states:
7. Effect of abatement or dismissal [Order 24, rule 7.]
(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
19. The appeal was admitted on 25/1/2022. On 16/2/2023 – the record shows that counsel for the appellant was present but did not inform the court of the demise of his client. He only speaks to filing the Record of Appeal and he gets time to file and serve the same and come back for directions. When he comes back on 19/6/2023 he states that he needs 7 days to respond to the application to strike out the appeal.
20. He does not do that he files an application for revival of appeal.
21. The issue is whether either of the applications is tenable.
22. In my view the application for striking out was overtaken by events – this court ought to have suo motu found that the appeal had abated and proceeded to close the file. However, the applicant filed the application and served it upon the respondent but there was no response the application – hence the appeal automatically abated.
23. The application for striking out though justified was not necessary. The suit abated – with costs to the respondent.
24. With respect to the application for revival – what is the reason given in the affidavit? The applicant depones
That I am the applicant herein.
That I am a son and legal representative of the appellant deceased herein. Annexed & marked “JMM1” (a)&(b) are copies of AD Litem and death certificate.
That it is fair that I be allowed to substitute the appellant.
That the appellant passed on 28th December, 2020.
That suit has abated.
That it is fair that the suit be revived.
25. Not a single explanation is given in the supporting affidavit for the application for revival as to why the application was not brought within 12 months or sufficient cause why this court should be persuaded to revive the appeal.
26. I have considered the authority cited. It is clear that where there is sufficient reason – the court will allow the application.
27. In this case there is nothing to explain or show sufficient cause.
28. It was never mentioned in court that the applicant was looking to obtain letters of administration. There was no mention of the passing of the appellant until the respondent filed the application for striking out.
29. I find that the applicant has not laid any basis upon which to allow the revival of the abated appeal.
30. The application is denied – the same is dismissed with costs to the respondent.
Dated, Signed and Delivered, this 12th day of July 2024
Mumbua T Matheka
Judge