[2011] KEHC 2129 (KLR)
The court held that only those who have obtained probate or letters of administration can be substituted as defendants in place of deceased parties. The sons of the deceased defendants, not having obtained such grants, lack the legal capacity to be sued or to represent the estates of the deceased in the ongoing...
Source-derived case information.
- Citation
- [2011] KEHC 2129 (KLR)
- Parties
- Plaintiff: John Karanja Wanjau; Plaintiff: James Waweru Kangethe; Plaintiff: Douglas Muchoki; Plaintiff: Kinuthia Njoroge; Plaintiff: Gikonyo Kihumba; Defendant: Maina Githaiga; Defendant: John Ngethe; Defendant: Daniel Mwangi Muhia; Defendant: Mureithi Urugari; Defendant: Kirugi Gathogo; Defendant: John King’ara; Defendant: Kamau Njora; Defendant: Ali Hussein
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 4409 of 1991
- Procedural Posture
- Civil Case / Ruling on Application for Substitution of Deceased Defendants
- Outcome
- application dismissed with costs
- Legal Topics
- Substitution of Parties, Letters of Administration, Capacity to Sue and Be Sued, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Karanja Wanjau
Plaintiff
James Waweru Kangethe
Plaintiff
Douglas Muchoki
Plaintiff
Kinuthia Njoroge
Plaintiff
Gikonyo Kihumba
Plaintiff
Maina Githaiga
Defendant
John Ngethe
Defendant
Daniel Mwangi Muhia
Defendant
Mureithi Urugari
Defendant
Kirugi Gathogo
Defendant
John King’ara
Defendant
Kamau Njora
Defendant
Ali Hussein
Defendant
Procedural Posture
Civil Case / Ruling on Application for Substitution of Deceased Defendants
Legal Issues
- 1 Whether persons who have not obtained letters of administration can be substituted as defendants in place of deceased parties.
- 2 Whether the application for substitution of the deceased defendants by their sons is competent.
Ratio Decidendi
The court held that only those who have obtained probate or letters of administration can be substituted as defendants in place of deceased parties. The sons of the deceased defendants, not having obtained such grants, lack the legal capacity to be sued or to represent the estates of the deceased in the ongoing suit. The application for substitution was therefore incompetent and could not be allowed. The court relied on statutory provisions under the Law of Succession Act and binding case law to reach this conclusion, emphasizing that the proper procedure must be followed for substitution of parties in civil litigation involving deceased persons.
Court Disposition
application dismissed with costs
Orders
- The application to substitute the 1st, 3rd, 7th, and 8th defendants with their sons is dismissed with costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 4409 OF 1991
JOHN KARANJA WANJAU ………………………….……..1ST PLAINTIFF
JAMES WAWERU KANGETHE ……………...…….……….2ND PLAINTIFF
DOUGLAS MUCHOKI …………………………...…………..3RD PLAINTIFF
KINUTHIA NJOROGE …………………………....……….….4TH PLAINTIFF
GIKONYO KIHUMBA …………………………......…………..5TH PLAINTIFF
V E R S U S
MAINA GITHAIGA ……………………………......………....1ST DEFENDANT
JOHN NGETHE ……………………………….....……..….…2ND DEFENDANT
DANIEL MWANGI MUHIA ………………….......….…….…3RD DEFENDANT
MUREITHI URUGARI ………………………….....………….4TH DEFENDANT
KIRUGI GATHOGO ……………………….......………….…..5TH DEFENDANT
JOHN KING’ARA …………………………......…………….…6TH DEFENDANT
KAMAU NJORA ……………………………....………………7TH DEFENDANT
ALI HUSSEIN ………………………………....……………….8TH DEFENDANT
R U L I N G
The Plaintiffs have applied under Order 1 rule 13 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act to have the 1st, 3rd, 7th and 8th Defendants, who are now dead, to be substituted by their respective sons whom they indicate to be the their legal representatives. The suit is over a suit of land that is L.R. No. 209 /136 /119, which either side claims. It is not indicated when the 1st, 3rd, 7th and 8th Defendants died, but it was in the course of this case which was filed in 1991.
The supporting affidavit to the application was sworn by the 3rd Plaintiff. It is clear from paragraph 6 of the affidavit that the persons sought to take over the case on behalf of the deceased Defendants have not taken out letters of administration. It is deponed as follows:-
“6. THAT the 1st, 3rd, 7th and 8th defendants legal representatives of the respective deceased have refused, failed and or neglected to apply for the Letters of Administration, intentionally and deliberately with bad motive to frustrate the hearing and determination of this matter.”
I agree with M/s Machio for the Defendants that the persons sought to replace the deceased Defendants have no capacity to be sued in the matter now that they have no grant of letters of administration. I agree with the decision in Centaury Oil Trading Co. Ltd. –Vs- Gerald M. Mwaniki & Another, HC Milimani Commercial Courts) C.C No. 14 of 2006, but wish to add as follows. Under Sections 79 and 82 of the Law of Succession Act (Cap. 160) it is only the administrator of the estate of a deceased who can sue or be sued following the death of the deceased. In Troustik Union International And Another –Vs- Mrs. Jane Mbeyu And Another, Civil Appeal No. 145of 1990 the Court of Appeal held that the deceased’s chose in action cannot be vested in or agitated by members of his family who are not his personal representatives, and that personal representatives are persons who have obtained probate or letters of administration. In other words, and for the purposes of the instant application, the only persons who can be substituted as Defendants in this case are those who have probate or letters of administration. Not their sons who have neither.
This is sufficient to dispose of the application which I dismiss with costs.
DATED AND DELIVERED AT NAIROBI
THIS 31ST DAY OF MARCH 2011
A.O. MUCHELULE
J U D G E