[2023] KEELC 20505 (KLR)

Nkirote v The Land Registrar Meru County & 12 others; Mworia (Applicant) (Environment & Land Case E017 of 2021) [2023] KEELC 20505 (KLR) (4 October 2023) (Ruling)

Neutral citation: [2023] KEELC 20505 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment & Land Case E017 of 2021

CK Nzili, J

October 4, 2023

Between

Celina Nkirote

Plaintiff

and

Land Registrar Meru County

1st Defendant

Attorney General

2nd Defendant

Land Adjudication and Settlement Office

3rd Defendant

Meru County Surveyor

4th Defendant

Gideon Mugambi Mworia

5th Defendant

M’Mboroki Ndura

6th Defendant

Julius Kimathi Mungania

7th Defendant

Afusa Grace Suleiman

8th Defendant

Yunus Adam Muthamia

9th Defendant

Joseph Hunyu Thirikwa

10th Defendant

Priscilla Mwari

11th Defendant

Mercy Kanyiri

12th Defendant

Michael Mwirigi Maitima

13th Defendant

and

Muriuki Kijana Mworia

Applicant

Ruling

1. By an application dated May 21, 2023, the court is asked under Order 24 Rules 1 & 3 (1) of the Civil Procedure Rules to allow for the substitution of the 11th defendant with John Githinji Hunyu, a representative of the estate of the deceased defendant since the cause of action has survived him. The proposed defendant relies on the affidavit sworn on May 25, 2023, where he states that he is the son of the deceased but was yet to apply for letters of administration. He says their house was brought down as per the attached copy of a chief's letter marked JGH "1".

2. Order 24 Rule 4 of the Civil Procedure Rules grants the court the power to cause a legal representative of the deceased defendant to be made a party to the suit and proceed with the same when the cause of action survives or continuous, if the application is made within one year of the death of the defendant. No death certificate has been attached to this application as proof of the date the 11th defendant passed on. The proposed party admits that he was yet to seek and obtain the letters of grant ad litem.

3. The law only allows for a legal representative to join a suit. In this instance, the proposed defendant cannot represent the estate of the deceased 11th defendant. In Sarah Kobilo Chebii and another vs David Chesang(2019) eKLR, the court observed that a legal representative under Section 2 of the Civil Procedure Act meant one who, in law, represents the estate of a deceased person as defined under the Law of Succession Act, having acquired a grant of representation. The court said that without a grant, such a party could not lawfully be substituted in place of a deceased party to a suit for lack of capacity, for he cannot implement an order of the court by disposing of the assets of the deceased under Section 45 of the Law of Succession Act.

4. In Trouistik Union International & another vs Jane Mbeya & another (1993) KLR 230, the court observed that a legal representative is a person appointed as such by a probate court under the Law of Succession Act.

5. Since there is no competent party to be substituted with the deceased defendant, I find the application incompetent. The same is dismissed with no order as to costs.

6. A notice shall also be issued upon the plaintiff and his advocates on record to show cause why this suit should not be dismissed for non-compliance to be heard on October 30, 2023.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERUON THIS 4THDAY OF OCTOBER 2023In presence ofC.A KananuArithi for Muthomi Njeru for the applicantMiss Maina holding brief for Mbaikyatta for 1st – 3rd defendantsMboos Mutunga for plaintiffHON. CK NZILIELC JUDGE