Nancy Wamaitha Muriithi & another v Loise Wanjiru [2015] KEELC 598 (KLR)
The bottom line
#Suing on behalf of a deceased person's estate before getting letters of administration makes the whole case a nullity from the start.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of administrators who file suit before obtaining letters of administration
A suit filed by plaintiffs as administrators before the grant of letters of administration is incompetent from inception; the trial magistrate correctly found the plaintiffs lacked locus standi
The suit was filed on 18 June 2014, but the letters of administration ad litem were only issued on 27 June 2014. The plaintiffs sued on behalf of the estate of the deceased, not on their own behalf. Counsel's claim of a mistake in the date on the grant was unsupported by evidence. Following Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama, quoting Otieno v Ougo, an administrator cannot sue before taking out letters of administration.
Whether the appeal against refusal of an injunction could succeed
The appeal was dismissed; the trial magistrate was correct in dismissing the injunction application because no prima facie case could exist without locus standi
The appellate court needed to be satisfied that the trial magistrate was wrong on the material tendered. Since the main reason the application failed was the want of locus standi, and the plaintiffs had none at filing, the magistrate's refusal of the injunction could not be faulted. Although the magistrate delved into other procedural technicalities, her core holding on locus was correct.
Exercise of the appellate court's power under Order 42 Rule 32 to strike out the suit
The court exercised its power under Order 42 Rule 32 to strike out the underlying suit as untenable for want of locus standi at filing
The court held that the suit, filed when the plaintiffs lacked locus standi, served no purpose at all. Invoking Order 42 Rule 32, which permits the appellate court to pass any decree or order which ought to have been passed or made, the judge went beyond dismissing the appeal and struck out the suit with costs.
Legal principles established
#- An administrator cannot bring an action as administrator before taking out letters of administration; a suit so filed is incompetent from inception
- The appellate court may, under Order 42 Rule 32, pass any decree or make any order which ought to have been passed or made
Court orders
#- 1.The appeal is dismissed with costs
- 2.The suit (Nakuru CMCC No. 578 of 2014, referred to in the order as No. 580 of 2014) is struck out with costs
- On appeal from
- Chief Magistrate's Court at Nakuru
- Nakuru CMCC No. 578 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over the Magistrate's Court, exercising the powers under Order 42 Rule 32 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nancy Wamaitha Muriithi & another v Loise Wanjiru [2015] KEELC 598 (KLR)", Case Analysis (2015). HCA 164 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/598/eng@2015-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.