[2021] KEHC 6283 (KLR)
The court held that since the respondent, Margaret Njoki Karuga, had died and no personal representative had been appointed or substituted in her place, the application could not be entertained. Section 82(a) of the Law of Succession Act and Rule 24 of the Civil Procedure Rules require that only a personal...
Source-derived case information.
- Citation
- [2021] KEHC 6283 (KLR)
- Parties
- Appellant: Jacinta Wairimu Karuga; Respondent: Margaret Njoki Karuga; Respondent: Ms. Githunka
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 94 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application
- Outcome
- Application struck out.
- Judges
- MM Kasango
- Legal Topics
- Substitution of Parties, Death of Party, Personal Representative, Striking Out Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacinta Wairimu Karuga
Appellant
Margaret Njoki Karuga
Respondent
Ms. Githunka
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the application can proceed after the death of the respondent without substitution of a personal representative.
- 2 Whether the court can entertain an application by or against a deceased party without compliance with statutory requirements.
Ratio Decidendi
The court held that since the respondent, Margaret Njoki Karuga, had died and no personal representative had been appointed or substituted in her place, the application could not be entertained. Section 82(a) of the Law of Succession Act and Rule 24 of the Civil Procedure Rules require that only a personal representative may continue or initiate proceedings on behalf of a deceased party. The absence of substitution rendered the application incompetent, necessitating its striking out.
Court Disposition
Application struck out.
Orders
- The Notice of Motion dated 30th July, 2019 is struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CIVIL APPEAL NO. 94 OF 2017
JACINTA WAIRIMU KARUGA...........................................................................APPELLANT
VS
MARGARET NJOKI KARUGA........................................................................RESPONDENT
RULING
1. The application under consideration is dated 30th July, 2019. It was filed on behalf of MARGARET NJOKI KARUGA (Margaret). By an affidavit dated 2nd December, 2019, Jacinta Wairimu Karuga (Jacinta) the respondent deponed that Margaret died on 22nd September, 2019. That deposition is not controverted and what I find difficult to understand is that an advocate, Ms. Wambura holding brief for Mr. Njuguna, appeared before me on 22nd April, 2021 and she together with counsel for Jacinta requested that a ruling on the application be delivered on the basis of affidavit evidence. Ms. Wambura did not inform the court that her client, Margaret, had passed away.
2. In view of the fact that the assertion that Margaret had passed away was not controverted, it follows that the Notice of Motion application dated 30th July,` 2019 cannot be entertained unless someone is appointed as personal representative of her estate and then that person be substituted in the action instead of Margaret as provided under Section 82(a) of the Law of Succession Act and as per Rule 24 of the Civil Procedure Rules.
3. It follows therefore the application cannot proceed. I wish to rely on a Court of Appeal decision of 1997 in the case FREDRICK WACHIRA NDEGWA (SUBSTITUTING NDEGWA WACHIRA (DECEASED) VS. RICHARDA WANJIKU NDANJERU & ANOR (1997) eKLR as follows:-
“The Act came into force on the 1st July. 1981. The person whose death and succession gave rise to this suit, namely,John Katembe, died on the 10th April, 1984. To determine who may agitate by suit any cause of action vested in him at the time of his death, one must turn toSection 82 (a)of the Law of Succession Act. That Section confers that power on personal representatives and on them alone. As to who are personal representatives within the contemplation of the Act,Section 3the interpretative section, provides an all-inclusive answer; It says, ‘personal representative means executor or administrator of a deceased person’”.
DISPOSITION
4. In view of the above discussion the Notice of Motion dated 30th July, 2019 is hereby struck out with no orders as to costs.
RULING DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF JUNE, 2021.
MARY KASANGO
JUDGE
Coram:
Court Assistant : Ndege
For the Appellant : No appearance
For the Respondent : Ms. Githunka
COURT
Ruling delivered virtually.
MARY KASANGO
JUDGE