[2021] KEELC 3943 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 19 OF 2019

JUSTINO MUKAMI WANYAMA..........................................PLAINTIFF

VERSUS

KITERE WANGIA................................................................DEFENDANT

AND

MICHAEL SIDNEY SIFUNA(suing as the legal representative

Of the estate of JUSTINO MUKAMI WANYAMA)....................APPLICANT

RULING

The application is dated 15th December 2020 seeking the following orders:-

1. That the honourable court be pleased to grant leave to substitute the plaintiff Justino Mukami Wanyama who is deceased with the applicant herein Michael Sidney Sifuna.

2. That costs of this application be in the cause.

It is based on the annexed affidavit of Michael Sidney Sifuma the applicant and on the grounds that the plaintiff herein died on 27th October, 2020 after judgment in this suit having been delivered on 39th April, 2020. That the cause of action survived and or continues. That the substitution is brought in time and will not cause any prejudice to any parties herein.

This court has considered the application and submissions therein. The applicant submitted that the plaintiff died when judgment in this suit had been delivered. That the cause of action herein is a land issue where the plaintiff was declared the owner of portion measuring 1. 5 Ha of land parcel No. Bunyala/Nambacha/638 by virtue of adverse possession and the defendant/respondent was ordered to transfer the said suit land to the plaintiff/applicant within the next 30 days from the date of judgment failure to which the deputy registrar to sign the transfer documents. That he now wishes to apply to be allowed to substitute the deceased, plaintiff so that the transfer of the suit land can be effected and the matter comes to rest. The applicant wishes to be substituted as the legal representative of the plaintiff. In the Law of Succession Act, the term “personal representative” is interpreted to mean the Executor or Administrator, as the case may be, of a deceased person. Section 79 of the said Act provides as follows with regard to a personal representative:-

“The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of the grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.”

Section 82 (a) of the said Act provides that:-

“Personal representatives shall, subject only to limitation imposed by their grant, have powers to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative.”

In the present case the applicant has not produced any evidence to prove he is the administrator. In Otieno vs Ougo (1986-1989) EALR 468, the Court rendered itself thus:

“… An administrator is not entitled to bring any action as administrator before he has taken out letters of administration. If he does, the action is incompetent as of the date of inception.”

I find that the applicant has no locus standi to represent the plaintiff. Locus standi is defined in Black’s Law Dictionary, 9th Edition at page 1026 as-

“The right to bring an action or to be heard in a given forum”.

In the case of AlfredNjau & 5 Others vs. City Council of Nairobi (1983) eKLR the court held that;

“The termlocus standimeans a right to appear in Court and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.”

For these reasons, I find this application has no merit and I dismiss it with no orders as to costs as the same was undefended.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 23RD MARCH 2021.

N.A. MATHEKA

JUDGE