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Court of AppealStruck OutCivil Application 133 of 2023· [2024] KECA 1888 (KLR)

CHRISTINE MUKLRI & 2 others v MERCY GAKII & 2 others

Court of Appeal
5 December 2024
1,263 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The applicants, who had filed Nyeri Civil Appeal No. E133 of 2023 and a related application, moved the Court of Appeal at Nyeri under rule 99 of the Court of Appeal Rules and sections 3, 3A and 38 of the Appellate Jurisdiction Act seeking appointment of Mercy Gakii, Rosa Wanja and Moreen Gatwiri (daughters of the deceased respondent Lydia Karimi) as legal representatives of her estate, and their substitution as respondents so the appeal would not abate. They asserted that nothing was being done to replace the deceased respondent despite a court direction to substitute within 60 days. Counsel for the deceased respondent, Mwirigi Kaburu, opposed the application, confirming he had reported his client's demise and had, on 23rd May 2024, filed an application in the Meru High Court (Misc. Succ. Appl. No. E005 of 2024) for a limited grant ad litem, petitioned by Moreen Gatwiri Sebastian. He relied on Trouistik Union International v Jane Mbeyu [1993] KLR 230 for the proposition that only a person appointed by a Succession Court is a legal representative. Lesit JA held that the application was founded on wrong premises, since the succession process had already begun through the deceased's family, and struck it out as superfluous with no order as to costs. The ruling reaffirms that legal representation of a deceased party must flow from a grant by a Succession Court.

Key legal issues

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01

Who qualifies as a legal representative of a deceased party for purposes of substitution

Holding

Only a person appointed as such by a Succession Court under the Law of Succession Act qualifies; the proposed substitutes had not yet been so appointed

Reasoning

The court reaffirmed the position in Trouistik Union International v Jane Mbeyu that legal representation of a deceased person flows from appointment by a Succession Court. The respondents' counsel had already petitioned for a limited grant ad litem in the Meru High Court, so the proper process was underway and the applicants' application was unnecessary.

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02

Whether the application under rule 99 was competent

Holding

It was not; it was made on wrong premises and was superfluous

Reasoning

The application was founded on the assertion that nothing was being done to replace the deceased respondent. In fact, four months before the application was filed, counsel for the deceased's family had petitioned for letters of administration ad litem in the Meru High Court. The application was therefore struck out.

Legal principles established

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  • The legal representative of a deceased person is the person appointed as such by a Succession Court in accordance with the Law of Succession Act

Court orders

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  1. 1.The application is struck out with no order as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 99
  • Appellate Jurisdiction ActSections 3, 3A & 38
  • Law of Succession Act

Cases cited (1)

  • Trouistik Union International & Anor. v. Jane Mbeyu & Anor.
    [1993] KLR 230

    The legal representative of a deceased person is the person appointed as such by a Succession Court under the Law of Succession Act

Jurisdiction invoked
Section 3, 3A & 38 of the Appellate Jurisdiction Act and rule 99 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "CHRISTINE MUKLRI & 2 others v MERCY GAKII & 2 others", Case Analysis (2024). Civil Application 133 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1888/eng@2024-12-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.