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ELCStruck OutNot stated in the judgment· [2015] KEELC 337 (KLR)

Josphat Kimani Wambura & 2 others v Paul Mung’ara Thuku & another [2015] KEELC 337 (KLR)

Environment and Land Court
18 June 2015
771 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a land and shares claim because the plaintiffs sued people who had no legal authority to answer for the deceased's estate.

What this practically means

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Executive summary

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The defendants filed an application dated 16 July 2012 seeking to strike out the plaint under Order 2 Rule 15 and Order 31 of the Civil Procedure Rules on the ground that they were not the administrators of the estate of Thuku Mung'ara, contrary to their description in the plaint. The plaintiffs, who described themselves as administrators of the estate of Wilfred Wambura Mateta, had sued claiming that the late Mateta co-owned shares in New Pilion Estate Ltd with Mung'ara under a Trust Deed, and sought orders directing the defendants to declare trust profits since 1986 and to transfer half the shares to the plaintiffs. The defendants entered appearance and filed a preliminary objection, followed by the strike-out application supported by an affidavit of the 1st defendant deposing that neither defendant was an administrator of the Mung'ara estate. The plaintiffs filed no response and their advocates did not attend the hearing. Counsel for the applicants cited seven authorities, all holding that only a personal representative can be sued on behalf of a deceased's estate. Relying on Section 3 of the Law of Succession Act, which defines a personal representative as an executor or administrator, Munyao Sila J found it undisputed that the defendants held neither capacity; the description in the plaint could not stand and the plaintiffs had sued the wrong persons. The suit was declared a non-starter and struck out with costs.

Key legal issues

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01

Whether a suit against defendants who are not personal representatives of the deceased is competent

Holding

The suit fails because the defendants are not executors or administrators of the estate of Thuku Mung'ara and therefore were wrongly sued.

Reasoning

The defendants applied to strike out the plaint under Order 2 Rule 15 and Order 31 of the Civil Procedure Rules, deposing that they were not administrators of the Mung'ara estate. The plaintiffs did not respond and their counsel did not attend. The court, guided by Section 3 of the Law of Succession Act which defines a personal representative as an executor or administrator, found the undisputed position that the defendants held no such capacity. Seven authorities cited by counsel uniformly hold that only a personal representative can be sued for a deceased's estate, and suits against non-representatives fail. The plaintiffs sued the wrong persons and the suit was a non-starter.

p. 2

Legal principles established

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  • Only a personal representative (executor or administrator) of a deceased person can be sued on behalf of that person's estate.

Court orders

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  1. 1.The plaint is struck out with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15
  • Civil Procedure RulesOrder 31
  • Law of Succession ActSection 3

Cases cited (7)

  • Festo Wakhungu Sefana -Vs- Moody Aradi
    (2015) EKLR
  • John Karanja Wanjua & 4 Others -Vs- Maina Githaiga & 7 Others
    (2011) EKLR
  • Joseph Kahindi & 313 others - Vs- Mohammedali Sulemanji Essaji
    (2004) EKLR
  • Jeremiah Kamau Gitau & 2 Others-Vs- Wandai & 5 others
    (1989) EKLR
  • Rodah Mugikuyu Mutunga & 4 others-Vs- Kitole Mutinda & Another (sued as the widows & personal representative of William Mutinda Kaliali & another
  • Omar Makonde Mturi -Vs- Benson Mwadzombo Hanga
    (2003) EKLR
  • Godfrey Omondi Otieno - Margaret Achola Lukas & Another
    (2013 EKLR
Jurisdiction invoked
Civil Procedure Rules, Order 2 Rule 15 and Order 31

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, "Josphat Kimani Wambura & 2 others v Paul Mung’ara Thuku & another [2015] KEELC 337 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/337/eng@2015-06-18

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