[2011] KEHC 3767 (KLR)
The court held that the applicant, Joseph Mwai Kamurwa, is not entitled to be substituted as plaintiff because he is not the legal representative of the estate of Gachiri Njege, which is the subject of the suit. He only holds Letters of Administration for the estate of Beatrice Wairimu Gachiri, the deceased...
Source-derived case information.
- Citation
- [2011] KEHC 3767 (KLR)
- Parties
- Plaintiff: Beatrice Wairimu Gachiri (as administrator and personal representative of the estate of Gachiri Njege, deceased); Applicant: Joseph Mwai Kamurwa; Defendant: Joseph Gachiri; Defendant: Johnson Muriithi Kinyua; Defendant: District Land Registrar, Nyeri Registry; Defendant: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 49 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Substitution Application
- Outcome
- application dismissed with costs to the 2nd defendant
- Legal Topics
- Substitution of Parties, Letters of Administration, Locus Standi, Estate Administration, Rectification of Land Register
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Wairimu Gachiri (as administrator and personal representative of the estate of Gachiri Njege, deceased)
Plaintiff
Joseph Mwai Kamurwa
Applicant
Joseph Gachiri
Defendant
Johnson Muriithi Kinyua
Defendant
District Land Registrar, Nyeri Registry
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Substitution Application
Legal Issues
- 1 Whether the applicant, as legal representative of the estate of Beatrice Wairimu Gachiri, can be substituted as plaintiff in place of the deceased in a suit concerning the estate of Gachiri Njege.
- 2 Whether the applicant has locus standi to continue the suit without being the legal representative of the estate of Gachiri Njege.
Ratio Decidendi
The court held that the applicant, Joseph Mwai Kamurwa, is not entitled to be substituted as plaintiff because he is not the legal representative of the estate of Gachiri Njege, which is the subject of the suit. He only holds Letters of Administration for the estate of Beatrice Wairimu Gachiri, the deceased plaintiff, and not for the estate of Gachiri Njege. Therefore, he lacks locus standi to prosecute or continue the suit on behalf of the estate of Gachiri Njege. The application for substitution was dismissed with costs to the 2nd Defendant.
Court Disposition
application dismissed with costs to the 2nd defendant
Orders
- The application for substitution is dismissed.
- Costs of the application are awarded to the 2nd Defendant.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL CASE NO. 49 OF 2008
BEATRICE WAIRIMU GACHIRI (Suing as the administrator and personal representative of the estate of
GACHIRI NJEGE (DECEASED).........................................................................................................PLAINTIFF
JOSEPH MWAI KAMURWA.........................................................................................................APPLICANT
VERSUS
JOSEPH GACHIRI..................................................................................................................1ST DEFENDANT
JOHNSON MURIITHI KINYUA.............................................................................................2ND DEFENDANT
DISTRICT LAND REGISTRAR, NYERI REGISTRY.............................................................3RD DEFENDANT
THE HON. ATTORNEY GENERAL.......................................................................................4TH DEFENDANT
RULING
UnderOrder XXIII rule 3 of the Civil Procedure Rules, (now Order 24 rule 3), JOSEPH MWAI KAMURWA, the applicant herein, took out the Summons dated 31st March 2010 in which he applied for the following orders:
(i)That the Honourable court be pleased to order the applicant JOSEPH MWAI KAMURWA to be substituted as the Plaintiff in this suit.
(ii)That the pleadings herein be amended accordingly.
(iii)That the costs of this application be provided for.
The Applicant filed an affidavit he swore in support of the Summons. JOHNSON MURIITHI KINYUA, the 2nd Defendant herein filed a replying affidavit to oppose the application.
The facts giving rise to the Summons are short and straightforward. Beatrice Wairimu Gachiri in her capacity as the legal representative of the Estate of Gachiri Njege, deceased, sued the Defendants herein by way of the Plaint dated 15th May 2008 in which she sought for judgement in the following terms:
(a)Land parcel number:
(i)Iriani/Chehe/371
Belongs to the Estate of Gachiri Njege and the same to be registered in the name of Beatrice Wairimu Gachiri as the administrator of the said Estate.
(b)The Registrar, Nyeri District Land Registry do rectify the register with regard to the property known as Iriani/Chehe/371 and the registration of Joseph Gachiri Njege and Johnson Muriithi Kinyua be accordingly cancelled.
(c)Costs be borne by the Defendants.
Beatrice Wairimu Gachiri passed away on 7th May 2009 while this suit is still pending hearing and determination. The Applicant has now beseeched this Court to substitute the deceased’s name with his as the Plaintiff herein. He annexed to his affidavit a grant of Limited Letters of Administration in respect of the Estate of Beatrice Wairimu Gachiri, deceased. The 2nd Defendant opposed the application on the grounds that the applicant was not the legal representative of the Estate of Gachiri Njege, deceased. I have considered the rival submissions plus the material placed before this Court. There is no doubt that the late Beatrice Wairimu Gachiri was the legal representative of the Estate of Gachiri Njege, deceased. She filed this suit in her capacity as the legal representative of the Estate of Gachiri Njege, deceased. Unfortunately she passed on before the suit was heard and determined. The Applicant has now obtained Letters of Administration in respect of the Estate of Beatrice Wairimu Gachiri, deceased. He has now asked this Court to issue an order to have him substitute her as the Plaintiff. With respect, I agree with the submissions of Mr. Magee, learned advocate for the 2nd Defendant, that the orders sought by the applicant herein cannot be granted because the Applicant is not the legal representative of the Estate of Gachiri Njege, deceased. He is simply the legal representative of the Estate of Beatrice Wairimu Gachiri, deceased. The Applicant therefore has no locus to succeed the Estate of Gachiri Njege, deceased without first obtaining the Letters of Administration. Having come to aforesaid conclusion, the application is for dismissal which I hereby order with costs to the 2nd Defendant.
Dated and delivered at Nyeri this 18th day of February 2011.
J. K. SERGON
JUDGE
In open court in the presence of Miss Keli holding brief Ndana for the 2nd Defendant. No appearance for 1st Defendant. No appearance for Nderi.