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ELCDismissedNot stated in the judgment· [2014] KEELC 535 (KLR)

Andrew Githinji Mwihuri v Silas Munuhe Mwaniki & 9 others [2014] KEELC 535 (KLR)

Environment and Land Court (as styled in the judgment text)
21 February 2014
AOA. Ombwayo
1,983 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Only a deceased person's personal representative can sue for their estate in Kenya, and a power of attorney obtained after filing suit cannot fix that defect.

What this practically means

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Executive summary

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The plaintiff, Andrew Githinji Mwihuri, sued the directors of Muhotetu Farmers Company Limited and the company itself, seeking an injunction restraining the sale of four prime developed plots advertised in the Daily Nation on 19 October 2013, and an order barring the directors from accessing the company's bank accounts on the ground that they had presented a dubious audited balance sheet signed by themselves rather than by registered auditors. He claimed to act for his late father-in-law's family, having been given the deceased member's card by his 90-year-old mother-in-law, Hellen Wambugu Maranga, the administratrix of the estate. The defendants filed a preliminary objection contending that the plaintiff was not a member of the company and lacked locus standi, having no grant of letters of administration or valid authority. The court upheld the objection. Relying on section 82(a) of the Law of Succession Act read with the Law Reform Act and distinguishing Trouistik Union International v Jane Mbeyu, the court held that only the personal representative may agitate a cause of action vested in a deceased person, and that an administratrix cannot delegate her duties. The plaintiff's power of attorney, registered only after the suit was filed and after the capacity objection was raised, could not cure the defect. The court found the entire suit a nullity, bad in law and incompetent, dismissed it, and made no order as to costs.

Key legal issues

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01

Locus standi of a son-in-law suing on behalf of a deceased member represented by his administratrix widow

Holding

The plaintiff, being neither a dependant nor the administratrix, had no capacity to sue on behalf of the estate

Reasoning

The court applied section 82(a) of the Law of Succession Act, read with the Law Reform Act, holding that only the personal representative may agitate a cause of action vested in a deceased person. The plaintiff was a son-in-law who merely held the deceased member's card from the widow. Unlike the Trouistik Union case, he was neither a dependant nor an administratrix. The widowed administratrix's informal authority was of no legal consequence as she cannot delegate her statutory duties.

p. 3
02

Effect of a power of attorney registered after filing suit

Holding

Registration of the power of attorney after the suit was filed could not cure the lack of capacity; the suit was ab initio a nullity

Reasoning

The plaintiff relied on a power of attorney registered on 27 November 2013 as No. 79. The court noted the suit had already been filed and the defendants had already raised the capacity issue. Obtaining the power of attorney at that stage was an attempt to cure an incompetent suit retroactively, which the law does not permit; a suit commenced without capacity is void from the outset.

p. 3

Legal principles established

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  • Only the personal representative (administrator or administratrix) of a deceased person's estate may agitate by suit a cause of action vested in the deceased
  • An administratrix does not have power to delegate her duties in the estate of the deceased
  • A suit commenced without capacity is a nullity and cannot be cured by a subsequent power of attorney

Court orders

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  1. 1.The preliminary objection dated 16/11/2013 is upheld
  2. 2.The entire suit is dismissed with no order as to costs

Authorities

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Legislation

  • Law Reform ActCap 26 Laws of Kenya
  • Law of Succession ActCap 160 Laws of Kenya, section 2
  • Law of Succession ActCap 160 Laws of Kenya, section 82(a)
  • Companies Actnot specified

Cases cited (1)

  • Trouistik Union International and another -VS- Jane Mbeyu and another
    Nairobi C.A.C.A No. 145 of 1990 (unreported)
Jurisdiction invoked
Not expressly invoked in the judgment

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, "Andrew Githinji Mwihuri v Silas Munuhe Mwaniki & 9 others [2014] KEELC 535 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/535/eng@2014-02-21

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