[2021] KEELRC 2211 (KLR)
The court held that the suit was incompetent from the outset because it was filed by a party without legal capacity, namely, the claimant union acting without letters of administration. Since the original suit was void for want of locus standi, there was no valid proceeding in which to substitute the applicant as...
Source-derived case information.
- Citation
- [2021] KEELRC 2211 (KLR)
- Parties
- Applicant: Kenya Engineering Workers Union; Respondent: Napro Industries Limited; Applicant: Hellen Nduku Mbithi Nyilu
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1053 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Substitution Application
- Outcome
- application dismissed
- Judges
- AN Makau
- Legal Topics
- Locus Standi, Letters of Administration, Substitution of Parties, Capacity to Sue
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Engineering Workers Union
Applicant
Napro Industries Limited
Respondent
Hellen Nduku Mbithi Nyilu
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Substitution Application
Legal Issues
- 1 Whether the suit filed by the claimant union without letters of administration is competent.
- 2 Whether the applicant, as administrator of the deceased's estate, can be substituted as claimant in the suit.
Ratio Decidendi
The court held that the suit was incompetent from the outset because it was filed by a party without legal capacity, namely, the claimant union acting without letters of administration. Since the original suit was void for want of locus standi, there was no valid proceeding in which to substitute the applicant as claimant. The application for substitution was therefore dismissed as it could not cure the fundamental defect of the original suit. Each party was ordered to bear its own costs.
Court Disposition
application dismissed
Orders
- The application for substitution is dismissed.
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
ELRC. CAUSE NO. 1053 OF 2015
KENYA ENGINEERING WORKERS UNION................................................CLAIMANT
-VERSUS-
NAPRO INDUSTRIES LIMITED................................................................RESPONDENT
RULING
1. The application before me is the Claimant’s Notice of Motion dated 21. 1.2020 seeking the following orders:
(a) That the court be pleased to substitute Hellen Nduku Mbithi Nyilu. The Administrator of the deceased’s estate.
(b) Any other order the court deems fit.
2. The application is supported by the affidavit sworn by Ms.Hellen Nduku Mbithi Nyilu on 29. 1.2020 and it is opposed by the Respondent vide the Grounds of Opposition filed on 10. 2.2020.
3. The Claimant’s case is that Ms. Hellen Nduku is the widow of Boniface Mbithi Nyilu who died on 19. 1.2014; that on 28. 11. 2019, she obtained a Limited Grant Of Letters Of Administration from the deceased estate in order to pursue compensation from his employer who is the Respondent in ELRC Cause No. 1053 of 2015. The Claimant prayed for the order sought because the widow has now the capacity to pursue the suit.
4. The Respondent opposed the application on ground that the suit is incompetent ab initio because it was filed by the Claimant without any capacity or locus standi. She relied on several precedents to urge that the application and indeed the suit are incompetent.
5. I have carefully considered the material presented to the court by tthe parties. The issue for determination are:
(a) Whether the application is incompetent
(b) Whether the application has merits
Incompetent Motion
6. It is common ground that the late Boniface Mbtihi Nyilu died on 19th January, 2014 in a road accident. It is also a fact that the suit was filed on 16. 6.2015 by the Claimant union without any Letter of Administration to represent the deceased’s estate. It is also a fact that the deceased’s widow obtained Grant of Administration on 28. 11. 2019 and now wants to substitute the union in the suit.
7. Having considered the facts of the case and the application before me, I must agree with the Respondent that the suit is incompetent ab initio because it was filed by a person without the legal capacity to sue for want of a Grant of Letters of Administration. It follows that even the application to substitute the Claimant does not hold water because there is no competent suit for her to take over.
8. It is a well settled principle of law that any suit filed on behalf of a deceased person without first obtaining Letters of Administration is incompetent and it cannot see the light of the day. Consequently, I find and hold that application herein is incompetent because the suit is also incompetent. In the end, I reject the application and proceed to dismiss it for the reasons stated above. Each party to bear its own costs.
Dated, signed and delivered at Nairobi this 5th day of February, 2021.
ONESMUS N. MAKAU
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the Covid-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th April 2020, this judgment has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28(3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.
ONESMUS N. MAKAU
JUDGE