[2018] KEELC 4669 (KLR)
The court held that Phillis Wanjiku Njuki could not be substituted as the defendant in place of the deceased Jonathan Njuki Githaiga because she had not obtained a grant of letters of administration nor was she an executor of the deceased's estate. The law requires that only a legal representative, as defined under...
Source-derived case information.
- Citation
- [2018] KEELC 4669 (KLR)
- Parties
- Plaintiff: Julius Gichobi Githaiga; Plaintiff: Janet Wangechi Gichobi; Defendant: Jonathan Njuki Githaiga; Defendant: Phillis Wanjiku Njuki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 207 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Substitution Application
- Outcome
- application dismissed
- Judges
- BN Olao
- Legal Topics
- Substitution of Parties, Legal Representative Status, Letters of Administration, Locus Standi, Estate of Deceased, Procedure on Death of Party
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Gichobi Githaiga
Plaintiff
Janet Wangechi Gichobi
Plaintiff
Jonathan Njuki Githaiga
Defendant
Phillis Wanjiku Njuki
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Substitution Application
Legal Issues
- 1 Whether Phillis Wanjiku Njuki can be substituted as defendant in place of the deceased Jonathan Njuki Githaiga without being appointed as legal representative of the estate.
- 2 Whether the application for substitution meets the requirements under Order 24 Rule 4(1) of the Civil Procedure Rules.
Ratio Decidendi
The court held that Phillis Wanjiku Njuki could not be substituted as the defendant in place of the deceased Jonathan Njuki Githaiga because she had not obtained a grant of letters of administration nor was she an executor of the deceased's estate. The law requires that only a legal representative, as defined under the Civil Procedure Act and the Law of Succession Act, may be substituted for a deceased party. Since Phillis Wanjiku Njuki had not been appointed as such, she lacked the necessary locus standi. The application for substitution was therefore dismissed for want of merit.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 2nd August 2017 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KERUGOYA
ELC CASE NO. 207 OF 2014
JULIUS GICHOBI GITHAIGA
JANET WANGECHI GICHOBI...................................PLAINTIFFS
VERSUS
JONATHAN NJUKI GITHAIGA..........DEFENDANT/DECEASED
AND
PHILLIS WANJIKU NJUKI...............SUBSTITUTE/DEFENDANT
RULING
The defendant herein JONATHAN NJUKI GITHAIGA is deceased and JANET WANGECHI GICHOBI who has authority to plead and act in this suit on behalf of her father JULIUS GICHOBI GITHAIGA, the plaintiff herein, has filed a Notice of Motion dated 2nd August 2017 seeking to substitute the deceased defendant with his wife PHILLIS WANJIKU NJUKI.
The application is opposed and grounds of opposition have been filed on the ground that no person has been appointed as a legal representative of the deceased defendant who can be substituted in his place.
Order 24 Rule 4 (1) of the Civil Procedure Rules provides as follows:
“Where one of two defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the Court, on an application made in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit”Emphasis added
A legal representative is defined in Section 2 of the Civil Procedure Act as:
“…….. a person who in law represents the Estate of a deceased person and where a party sues or is sued in a representative character, the person on whom the Estate devolves on the death of the party so suing or sued”.
Section 2 of the Law of Succession Act on the other hand defines a personal representative as:
“……… the executor or administrator of a deceased person”.
Anadministrator is defined in the same provision as:
“…….. a person to whom a grant of letters of administration has been made under this Act”
In the circumstances of this case, it is clear that the Applicant wishes to substitute the deceased defendant with his wife PHILLIS WANJIKU NJUKI. However it is also clear that the said PHILLIS WANJIKU NJUKI has not taken out any limited Grant of letters of Administration nor a full Grant of letters of Administration and neither is she an executor of her late husband’s Estate. She cannot therefore be substituted in place of the deceased defendant – TROUISTIK UNION INTERNATIONAL & ANOTHER VS MBEYO & ANOTHER 1993 K.L.R 230. See also VIRGINIA EDITH WAMBOI VS JOASH OCHIENG OUGO & ANOTHER 1982-88 1 K.A.R. In the circumstances, and until she is appointed as the legal representative of the Estate of the deceased, PHILLIS WANJIKU NJUKI cannot be substituted in place of the deceased defendant. She lacks the necessary locus.
The up-shot of the above is that the Notice of Motion dated 2nd August 2017 lacks merit. It is accordingly dismissed with no order as to costs.
B.N. OLAO
JUDGE
26TH JANUARY, 2018
Ruling delivered, dated and signed in open Court this 26th day of January, 2018 at Kerugoya
Ms Kiragu for Mr. Kagio for Defendant present
Applicant present.
B.N. OLAO
JUDGE
26TH JANUARY, 2018