<div class="akn-div parties-listing">
<div class="akn-div parties-separator">Between</div>
<div class="akn-div party-listing">
<div class="akn-div party-name">George Kimani Njuki</div>
<div class="akn-div dotted"> </div>
<div class="akn-div">Plaintiff</div>
</div>
<div class="akn-div parties-separator">and</div>
<div class="akn-div party-listing">
<div class="akn-div party-name">Hannah Njoki Njoroge</div>
<div class="akn-div dotted"> </div>
<div class="akn-div">Defendant</div>
</div>
</div>
15.Order 24 rule 7(2) of the Civil Procedure Rules on the other hand provides as follows:“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.”
16.Order 50 rule 6 of the Civil Procedure Rules provides that:“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:
17.Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”
18.It is not disputed that the deceased Defendant died on 16th October 2018 and that she was not substituted within 1 year as a result of which the Plaintiff’s suit against her abated. It is also not in dispute that the court has discretionary power to revive an abated suit and to extend time within which a deceased party to a suit is to be substituted. What is in dispute is whether the Applicant has shown sufficient cause to warrant the grant of the orders sought.
19.Sufficient cause was defined in Attorney General v Law Society of Kenya & another(Supra) that was cited by the Respondents as follows:“Sufficient cause or good cause in law means:...the burden placed on a litigant (usually by court rule or order) to show why a request should be granted or an action excused. See Black’s Law Dictionary, 9th Edition, Page 251.
20.Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubts in a judge’s mind. The explanation should not leave unexplained gaps in the sequence of events.”
21.I am satisfied that the Applicant has established sufficient grounds to warrant the grant of the orders sought. The Respondents were aware that this suit was pending. If they are to be taken seriously in their claim that delay in the prosecution of this suit is prejudicial to them, they should have taken the first opportunity to file an application for substitution of the deceased Defendant. There is no evidence that the Applicant was aware that the Respondents had been issued with a Grant in respect of the estate of the deceased. The mere fact that the Applicant was a relative of the deceased could not make him privy to the application for Grant that was made by the Respondents. There is no evidence that the Respondent’s brought to the Applicant’s attention the fact that they had obtained a Grant in respect of the estate of the deceased until after the Applicant had taken out a citation against a person whom the Applicant thought was entitled to a Grant. The present application was brought soon after the Applicant learnt of the Grant that had been issued to the Respondents. The filing of a Citation is evidence that the Applicant was keen on prosecuting the suit herein. In the circumstances, I am not persuaded that there was a delay in the filing of the present application. I am also not persuaded that justice cannot still be done to the parties in this matter. Since the Applicant’s claim is based on adverse possession, I find no merit in the Respondent’s claim that the suit is time barred. In any event, that issue goes to the merit of the claim and can only be determined after the suit is revived and the Respondents joined in the suit.
22.The upshot of the foregoing is that I find merit in the Applicant’s application and the same is allowed on the following terms;1.The suit herein is revived and the time within which the Applicant was to file an application for the substitution of the deceased Defendant is extended to and including the date when the application herein was filed.2.Amos Njoroge Kimani and Peter Muthee Kamau as the legal representatives of the estate of the Defendant, Hannah Njoki, deceased are substituted as Defendants in this suit in place of Hannah Njoki (deceased).3.The Applicant shall amend the plaint within 14 days from the date hereof to effect the substitution.4.The new Defendants shall be at liberty to file an amended defence within 14 days of service of the amended plaint.5.The costs of the application to be in the cause.