[2024] KEELC 1683 (KLR)
The court found that the authority to act granted by the 1st Defendant to the 2nd Defendant ceased upon the 1st Defendant's death. Without a grant of representation, the 2nd Defendant could not lawfully continue to act or plead on behalf of the deceased's estate. The inability to obtain the death certificate from...
Source-derived case information.
- Citation
- [2024] KEELC 1683 (KLR)
- Parties
- Plaintiff: Katana Charo Kenga; Defendant: John Mark Leshao; Defendant: Peter Kiragu Kagunyu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 90 of 2019
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- Application dismissed for want of prosecution; no order as to costs.
- Judges
- FM Njoroge
- Legal Topics
- Authority to Act, Representation of Deceased Estate, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Katana Charo Kenga
Plaintiff
John Mark Leshao
Defendant
Peter Kiragu Kagunyu
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the 2nd Defendant can continue to act or plead on behalf of the deceased 1st Defendant based on prior authority.
- 2 Whether the court should grant leave for the authority to act and sworn statement to be deemed duly filed and served despite the 1st Defendant's death.
Ratio Decidendi
The court found that the authority to act granted by the 1st Defendant to the 2nd Defendant ceased upon the 1st Defendant's death. Without a grant of representation, the 2nd Defendant could not lawfully continue to act or plead on behalf of the deceased's estate. The inability to obtain the death certificate from the former employer did not justify circumventing the legal requirement for proper representation. The court also noted that neither party complied with directions to file written submissions, indicating abandonment of the application. Consequently, the application was dismissed.
Court Disposition
Application dismissed for want of prosecution; no order as to costs.
Orders
- The 1st and 2nd Defendants' notice of motion dated 25th January 2024 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
Kenga v Leshao & 18 others (Environment & Land Case 90 of 2019) [2024] KEELC 1683 (KLR) (19 March 2024) (Ruling)
Neutral citation: [2024] KEELC 1683 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment & Land Case 90 of 2019
FM Njoroge, J
March 19, 2024
Between
Katana Charo Kenga
Plaintiff
and
John Mark Leshao & 18 others
Defendant
Ruling
1. For determination is the 1st and 2nd Defendants’ notice of motion application dated 25th January 2024, for orders that: -a.That the honourable court be pleased to grant leave to the 1st and 2nd Defendant to file authority to act dated 1st May 2022;b.That the honourable court be pleased to allow the 2nd defendant to appear, plead or act on behalf of the 1st Defendant;c.That the honourable court be pleased to allow the 1st Defendant’s sworn statement dated 8th February 2023;d.That the annexed authority to act, subject to the payment of necessary filing fees be deemed duly filed and served;e.That costs be in the cause.
2. In support of the application are the grounds on the face of the motion and the affidavit sworn by the 2nd Defendant, Peter Kiragu Kagunyu, on 30th January 2024. The 2nd Defendant deposed that since the 1st Defendant’s demise on 19th July 2023, his estate has been unable to apply for a limited grant for purposes of proceeding with this suit, for the reason that the 1st Defendant’s former employer has continued to hold the death certificate, and it is not certain when the same will be released to the estate. That prior to his demise, the 1st Defendant had authorized the 2nd Defendant to plead on his behalf in this suit. He annexed a copy of the said authority annexed to the supporting affidavit of their other notice of motion dated 5th May 2022.
3. The Plaintiffs opposed the application. They filed grounds of opposition dated 12th February 2024 stating that the power or authority to plead granted to the 2nd Defendant terminated upon the death of the donor, the 1st Defendant herein; and that the estate should obtain a duplicate of certificate of death from the relevant offices for purposes of applying for grant ad litem.
4. On 22nd February 2024, this court issued directions that the application be canvassed by way of written submissions to be filed by the 1st and 2nd Defendants within 7 days thereon and by the Plaintiffs within 7 days upon service. This time has since lapsed and neither party has filed submissions.
5. Having failed to comply with the directions of this court, I take it that the application has been abandoned. The same is hereby dismissed with no orders to costs.
DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 19TH DAY OF MARCH 2024. MWANGI NJOROGEJUDGE, ELC, MALINDI