[2022] KEHC 16320 (KLR)

Kirombi v Juliana; Njiru (Applicant) (Civil Appeal 36 of 2016) [2022] KEHC 16320 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16320 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 36 of 2016

RM Mwongo, J

December 14, 2022

Between

Elijah Njiru Kirombi

Appellant

and

Paul Njeru Juliana

Respondent

and

Andrew Mburia Njiru

Applicant

Ruling

1. The applicant approached the court pursuant to Rules 49 & 73 Probate and Administration by motion dated August 1, 2012 seeking orders that: The Honourable Court be pleased to substitute the applicant Andrew Mburia Njiru, for the deceased plaintiff, Elijah Njiru Kirombi for the purpose of proceeding with this matter; and that the Costs of this application be provided for.

2. The application is based on the grounds that the plaintiff/appellant died on January 7, 2012 and the cause of action herein survives him; and that the applicant has been issued with a limited grant of letters of administration ad litem in respect of the estate of the deceased plaintiff.

3. The applicant also deposed a supporting affidavit, of which the following are the major averments:1. That the plaintiff, Elijah Njiru Kirombi, died on January 7, 2012. 2.That the subject matter of this suit is land parcel No. Ngariama/Kabare/504 and the same survived the death of the plaintiff for the benefit of his land.3. That I desire to pursue the matter for the benefit of the estate of the deceased as the legal representative of the said estate.4. That this application is merited and I pray for the orders sought.

4. The respondent filed a Replying Affidavit on September 28, 2020. The following are the major averments in the replying affidavit1. That my advocate on record has read over and explained to me the contents of the Applicant’s Motion dated August 1, 2012 and the supporting affidavit thereof and I understand the same2. That it is clear from the Motion and the supporting affidavit that Elijah Njiru Kirombi, the deceased Appellant who is sought to be substituted, died on January 7, 2012 and this application was filed on August 10, 2012 but the motion seeking substitution has not been prosecuted to date, about 8 years later which clearly shows lack of diligence on the Applicant’s part.3. That the deceased’s estate consisting only of parcel No. Ngariama/ Kabare/504 has been distributed to its rightful beneficiaries in accordance with the confirmed Grant of the lower Court and some portions thereof have been transferred to third parties. The said beneficiaries and third parties are not parties to the appeal and the only option open to the applicant is to file a fresh suit against me, the said beneficiaries and third parties.4. That the Limited Grant of Administration ad litem relied upon by the Applicant does not give him the right to substitute the deceased Appellant in the circumstances of this appeal and in law as such Grant is made under Rule 36 (1) of the Probate and Administration Rules where owing to specific circumstances the urgency of the matter is so great that it would not be possible for the court to make a full grant of representation to the person who would by law be entitled thereto in sufficient time to meet the necessities of the case in a Probate & Administration matter and not in an appeal where a full grant is need.5. That the applicant is silent on whether anybody has applied for full grant in respect of the deceased appellant and whether such grant has been issued as it is only such a person who can substitute the deceased appellant as a matter of law.6. That the application has no legal basis in fact and in law and I pray that the same be dismissed with costs.

Parties’ Submissions Applicant 5. The applicant submitted that the application was filed within time. The appellant died on January 7, 2012 and therefore the application was made within 12 months of the death of the appellant. From the memorandum of appeal filed, it is clear that the cause of action survived the appellant, and this has not been disputed.

6. The applicant was issued with Letters of Administration Ad Litemin Embu High Court P & A 101 of 2012. The applicant was thereby granted the said grant for purposes of pursuing, inter alia, the appeal herein. He therefore has the locus standi to be substituted.

7. Finally, the applicant submits that whilst the respondent in paragraph 5 of the Replying affidavit challenges the limited grant issued to the Applicant, the said challenge is misconceived because the only way to challenge a grant duly issued by the court is to have the same revoked.

Respondent 8. The respondent submits that there has been lack of diligence on the part of the applicant to prosecute the application for the last 8 years. Consequently, the deceased’s estate consisting only of parcel No. Ngariama/kabare/504 has been distributed to its rightful beneficiaries in accordance with the confirmed Grant of the lower Court and some portions thereof have been transferred to third parties. The said beneficiaries and third parties are not parties to the appeal and the only option open to the applicant is to file a fresh suit against the respondent, the said beneficiaries and third parties.

9. The respondent submits that the Limited Grant of Administration Ad Litem relied upon by the Applicant does not give him the right to substitute the deceased Appellant in the circumstances of this appeal and in law as such Grant is made under Sec 67 LSA and Rule 36 (1) of the Probate and Administration Ruleswhere owing to specific circumstances the urgency of the matter is so great that it would not be possible for the court to make a full grant of representation to the person who would by law be entitled thereto in sufficient time to meet the necessities of the case in a Probate & Administration matter and not in an appeal where a full grant is needed.

10. The respondent cites Justice GV Odunga, at page 33 of his acclaimed Digest quotes the holdings of the Court of Appeal in Civil Appeal No 289 of 1998 to the effect that:“(a)(a) Where the appellant is dead, the administrator should be enjoined as a party.(b)A court may substitute without application being made if no objection is taken.”

11. At page 35 of the said Digest Odunga quotes the holding of the Court of Appeal in Dr. Ignatius Owalla Awino v Penina Oketo in Civil Appeal No. 226 of 1996 where the court stated as follows:“A person who has not obtained letters of administration can neither administer the estate of the deceased nor defend a suit against him and the court has no jurisdiction to proceed with the suit before a person holding a valid grant is brought on record.”

12. The respondent submits that there are instances when parties have sought substitution on the basis of limited grants. However, he asserts that such grants can only be issued to a person entitled to full grant in special circumstances where there is an urgent matter affecting the estate of a deceased in accordance with s. 67 of the Law of Succession Act and Rule 36 of the Probate & Administration Rules but not for purposes of substitution.

13. Further, the respondent urges that the applicant has not shown that he is the only person entitled to full grant in respect of his father’s estate and he cannot therefore use his limited grant to exercise the powers bestowed upon a personal representative under s. 67 of the Law of Succession Act except for the short-term goals of collecting and preserving the assets of the estate pending grant of representation or use the same as if it was a Grant of letters of Administration under s. 67 and Rules 25 and 26 of the Probate & Administration Rules. The latter is the only type of grant that would qualify him to make the kind of application that is before court and which is obtainable within less than one year.

Issues 14. The only issue is whether the applicant can substitute the deceased plaintiff/appellant for the purpose of proceeding with the appeal.

Analysis and Determination 15. The Respondent was the administrator of the estate of his mother, Julia Kabari Njogu who died in 2000. Her estate comprised of land parcel No. Ngariama/Kabare/504. The respondent applied for a confirmed grant which was objected to by the applicant’s father, as protestor, on the alleged ground that he was a purchaser of the said property. The trial court heard the protest and dismissed it. The trial court granted the land parcel to the respondent’s mother, Julia Kabari Njogu and his siblings on October 20, 2010.

16. Dissatisfied with the trial court’s decision, the plaintiff who was the protestor in the lower court, filed a memorandum of appeal on October 19, 2010. However, he passed away on January 7, 2012. The applicant obtained a grant of letters of administration ad Litem on June 20, 2012. The Ad Litem grant is expressly limited to, inter alia:“…for purposes of pursuing …..HCA No 104 of 2012”which is the suit herein, the subject matter of which is land parcel No. Ngariama/Kabare/504 that survived the death of the plaintiff.

17. The respondent submits that the Limited Grant of Administration Ad Litem relied upon by the Applicant does not give him the right to substitute the deceased Appellant in the circumstances of this appeal.

18. I think that the above position of the respondents can only be taken up by the them on an appeal or review as the High Court at Embu that issued the Grant Ad Litem clearly permitted the applicant to pursue this suit by name.

19. Sections 54 and 55 of the Law of Succession Act provide as follows:“54. A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.55 (1) “No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets, or to make any division of property, unless and until the grant has been confirmed as provided in section 71. ”

20. The Fifth Schedule referred to in Section 54 provides at Paragraph 14 as follows:14. When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution.

21. The above provisions are clear that such a limited grant is normally issued due to the exigencies arising in relation to the estate of the decreased person and which could not wait for issuance of full grant through the normal process.In this case the appellant died whilst the appeal was pending, and his representative (the applicant) was issued a Limited Grant to pursue the suit.

22. Such limited grant is issued without prejudice to the right of any other person to apply for a full grant of representation to the deceased. As such, the limited grant is normally not subjected to full and strict compliance with all the usual requirements meant for a full grant of representation. In addition, the person to whom the grant is so made undertakes to administer the estate according to the law but limited for the purpose for which the grant is issued until a further grant of representation is made by the court.

23. In the light of the foregoing, I am not persuaded by the respondent’s arguments that the applicant cannot properly pursue the appeal on the strength of the said limited grant as it was indeed issued specifically for that purpose. The limited grant does not entitle the applicant to do anything other than pursue the appeal to its logical conclusion. It entitles the applicant to nothing in the estate of either the deceased appellant or of Julian Kabari Njogu, except such rights as may be pronounced by the Court in the Appeal.

24. The issues raised by the respondent that the property of the estate of Juliana Njogu has already been distributed, and that the applicant has delayed in following up the appeal are also not the proper subject of the application for substitution but go to the question as to the propriety of the appeal itself.

25. Ultimately, I am not persuaded that an applicant holding a limited grant of representation specified to be limited for purposes of pursuing an appeal on behalf of a deceased appellant, cannot be entertained by the court as a substitute for that deceased appellant.

26. In the end, I dismiss the respondents’ grounds of opposition and allow the application for substitution.

27. I further direct that this old appeal be heard and determined expeditiously. The parties shall take directions for the disposal of the appeal within the next thirty (30) days.

28. Orders accordingly.

DELIVERED AT KERUGOYA ON THIS 14TH DAY OF DECEMBER, 2022. .....................................RICHARD MWONGOJUDGEIn the presence of:1. Muturi holding brief for Magee for the Appellant2. Chomba holding brief for Muchiri for the Respondent3. Court Assistant - Murage