[2008] KEHC 3691 (KLR)
The court held that the plaintiff, having not obtained letters of administration and not being the executor named in the deceased's will, lacked the legal capacity to institute the suit. The Law of Succession Act is explicit that only a personal representative or executor can validly represent the estate of a...
Source-derived case information.
- Citation
- [2008] KEHC 3691 (KLR)
- Parties
- Plaintiff: Gabriel Muli Musilu; Defendant: George Mwangi; Interested Party: Africa Trade Agency Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 606 of 2007
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- suit struck out for lack of capacity
- Judges
- MA Warsame
- Legal Topics
- Locus Standandi in Succession, Letters of Administration, Capacity to Sue, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Muli Musilu
Plaintiff
George Mwangi
Defendant
Africa Trade Agency Limited
Interested Party
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff has legal capacity to institute the suit without obtaining letters of administration for the estate of the deceased.
- 2 Whether the suit is competent in light of the existence of a will and an appointed executor.
Ratio Decidendi
The court held that the plaintiff, having not obtained letters of administration and not being the executor named in the deceased's will, lacked the legal capacity to institute the suit. The Law of Succession Act is explicit that only a personal representative or executor can validly represent the estate of a deceased person in legal proceedings. Since the plaintiff admitted he had not obtained the requisite grant and the will appointed another person as executor, the suit was incompetent from inception. The court found that the plaintiff's attempt to pursue the claim was contrary to the statutory requirements and the terms of the will, and therefore the suit could not be maintained.
Court Disposition
suit struck out for lack of capacity
Orders
- The suit is struck out for lack of capacity.
- Costs awarded to the defendant and interested party.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 606 of 2007 (OS
GABRIEL MULI MUSILU ………………………………..……..PLAINTIFF
VERSUS
GEORGE MWANGI …………………………….......……..…DEFENDANT
AFRICA TRADE AGENCY LIMITED .……....……..INTERESTED PARTY
RULING
The plaintiff Gabriel Muli Musilu has described himself as a son of Joseph Musilu Ndolo (deceased) and an heir to his estate. He claims that prior to his demise, the late Joseph Musilu was a director and shareholder of Africa Trade Agency Limited. He also alleges that the defendant is a representative of the estate of Samuel Mwangi Maina (deceased) who was a director and 2nd shareholder of Africa Trade Agency. The plaintiff’s claim or cause of action against the defendant and interested party is over land parcel No.Athi River/100426/2 and the proceeds of a sale concerning that property. The plaintiff alleges that the said parcel was sold for Kshs.32. 5 million. And he seeks the distribution of the proceeds of the aforesaid sale among the directors or shareholders of the company (Africa Trade Agency Limited).
The advocate for the defendant has raised a preliminary objection in that the plaintiff has not obtained letters of administration before the commencement of this action. Consequently this suit is incompetent from the day of inception and should be struck out with costs to the defendant. The question for my determination is whether the plaintiff is entitled to maintain the present suit as presented. It has been alleged that the father to the plaintiff left a will to one John Kimotho Ndolo to be the executor of his estate. In Succession miscellaneous cause No.3081 of 2007 the said John Kimotho Ndolo applied for a grant of probate of written will of the late Joseph Musilu Ndolo who died at Nairobi hospital on 14th April, 2007.
The law is very clear that once a deceased person leaves behind a will, the only person who can validly and legally step into his shoes is the person mentioned in the will. It is therefore clear that the plaintiff is not a personal representative and he cannot agitate by suit any cause of action vested in his late father at the time of his death. In short the plaintiff cannot fall within the description of personal representative and he cannot be the administrator of the estate of the deceased. The plaintiff confirms that he has not obtained letters of administration under the Succession Act therefore he cannot invoke the aid of this court to agitate the cause of action which survived the deceased. It is clear that the plaintiff has brought the present action as a son and an heir to the estate of his late father. In my view he has no capacity, powers, authority and duty to instigate the present suit against the defendant and interested party. It is my position that what the plaintiff is trying to do is parallel and/or contrary to the will left behind by the deceased.
In short the suit is incompetent for lack of capacity and it is hereby struck out with costs to the defendant and interested party.
Dated and delivered at Nairobi this 3rd day of April, 2008.
M. A. WARSAME
JUDGE