[2012] KEHC 5177 (KLR)
The court found that although the plaintiff's original letters of administration had been revoked, he had since obtained fresh letters before the application was determined, thereby regularizing his capacity. The court emphasized that the overriding objective under the Civil Procedure Act requires courts to do...
Source-derived case information.
- Citation
- [2012] KEHC 5177 (KLR)
- Parties
- Plaintiff: William Ole Nabala; Defendant: Attorney General & 5 Others
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 64 of 2007
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application
- Outcome
- Application by the 3rd defendant dismissed; suit to proceed to hearing.
- Judges
- CW Meoli
- Legal Topics
- Letters of Administration, Locus Standi, Overriding Objective, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Ole Nabala
Plaintiff
Attorney General & 5 Others
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff had legal capacity to institute the suit on behalf of the estate of Juma Omari Abdalla at the time of filing.
- 2 Whether the subsequent issuance of fresh letters of administration regularizes the plaintiff's standing.
- 3 Whether the suit should be struck out due to the initial lack of capacity.
Ratio Decidendi
The court found that although the plaintiff's original letters of administration had been revoked, he had since obtained fresh letters before the application was determined, thereby regularizing his capacity. The court emphasized that the overriding objective under the Civil Procedure Act requires courts to do substantial justice and avoid unnecessary technicalities, especially where no prejudice has been shown to the defendants. Given the long pendency of the suit and the absence of demonstrated prejudice, the court declined to strike out the suit and deemed it properly filed as of the date of the new grant.
Court Disposition
Application by the 3rd defendant dismissed; suit to proceed to hearing.
Orders
- The 3rd defendant's application is declined.
- The suit is deemed properly filed following regularization of the plaintiff's capacity.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MALINDI
CIVIL NO. 64 OF 2007
WILLIAM OLE NABALA.............................................................................................. PLAINTIFF
VERSUS
ATTORNEY GENERAL & 5 OTHERS..........................................................................DEFENDANT
RULING
1. The 3rd defendant’s application filed on 21-3-2011 has been considered alongside the respective submissions of the parties.
2. The application does not raise a mere technicality as submitted by counsel for the plaintiff. Rather it challenges the plaintiff’s capacity on 16-1-2001 to bring this suit on behalf of the estate of Juma Omari Abdalla.
3. It is common ground that the plaintiff in so doing acted pursuant to the grant of letters of administration issued to him in 1998, which this court revoked on 15-12-10. The plaintiff was however issued with fresh letters of administration on 19-5-2011, before the present applications could be disposed of.
4. On the basis of the legal authorities cited by the 3rd defendant’s counsel, there cannot be any argument that only a party who holds a grant of letters of administration of the estate of a deceased can commence litigation on behalf of that estate.
5. The difficulty I see in outrightly allowing the 3rd defendant’s application is three fold:
1. The plaintiff’s position has now been regularized by the issue of fresh letters to him.
2. The plaintiff did have letters of administrations at the time he filed the suit but which were later revoked.
3. Costs have been incurred in the suit, which commenced in 2001.
6. I have therefore agonized over the best course to take, in the interest of justice. Although I do not agree with some of the arguments of the plaintiff’s counsel, that the issue before us is one of technicality, I think the words of Appaloo JA in WACHIRA VS NDANJERU (1982–88)I KLR 1062 speak into the present situation. The honourable judge of appeal emphasized the need for courts to “strive to do substantial justice to the parities.”
7. Section 1B (1)of the Civil Procedure Act imposes a specific duty on the court “for the purpose of furthering the overriding objective specified in S1A”. Hence the court is enjoined to:
“handle all matters presented before it for the purpose of attaining the following aims:
a.The just determination of proceedings
b.The efficient disposal of the business of the court.
c.The efficient use of the available judicial and administrative resources.
d.The timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties…”
8. Considering the present application with those aims in mind, I think they militate against the grant of the orders sought by the 3rd defendant. More so because it has not been demonstrated that the 3rd defendant will suffer or has suffered any prejudice through the initial commencement of this suit, save that which can eventually be compensated through costs.
9. In my considered view, this case has been delayed for too long and ought to be heard expeditiously, as it is, rather than restarting the entire process.
10. For these reasons I decline to grant the application by the 3rd defendant. The plaintiff having regularized his capacity, this court now deems the suit as properly filed.
11. Costs will be in the cause.
12. The parties are directed to set down the suit for hearing without further delay.
Delivered and signed on this 23rdday of February, 2012 at Malindi in the absence of the parties.
C. W. Meoli
JUDGE