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ELCStruck OutNot stated in judgment· [2017] KEELC 392 (KLR)

Irene Chepkimoi Cheserem v Joan Cherop & 2 others [2017] KEELC 392 (KLR)

High Court of Kenya
14 December 2017
MOM.A ODENY
921 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a lawsuit filed against a deceased person, confirming you must sue the estate's legal representative, not family members.

What this practically means

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Executive summary

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The 2nd and 3rd defendants brought a Notice of Motion dated 24th August 2017 seeking striking out of the plaintiff's suit filed on 15th May 2017 on the ground that it was instituted against a deceased person, with costs. Counsel for the 2nd and 3rd defendants (Miss Kuyaki) submitted that the 1st defendant, Joan Cherop, died on 6th May 2017, before the plaint was filed on 15th May 2017, and that the 2nd and 3rd defendants were not legal representatives of her estate or of the estate of the late Wilson Chepkeitany, the alleged owner of the suit property. She relied on section 82 of the Law of Succession Act and the decision in Mary Nanjala Muhalya v Ambrose Kipruto [2014] eKLR, holding that only a legal representative of a deceased's estate can be sued in respect of it. The court framed two issues: whether a non-representative can be sued in respect of a deceased's estate, and whether it is proper to sue a deceased person. It found the death undisputed, that the pleadings nowhere described the defendants as legal representatives, and that a legal representative is one in whose favour a grant of letters of administration has issued. Suing a deceased person was held to be an abuse of court process, as there would be no one to serve or answer. The suit was struck out with costs to the defendants and the application allowed.

Key legal issues

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01

Whether a plaintiff may sue a deceased person and non-representatives of the estate

Holding

The suit against a deceased person and against persons who are not legal representatives of the estate is improper and an abuse of court process; the suit is struck out.

Reasoning

The 1st defendant died on 6/5/17 before the plaint was filed on 15/5/17. The 2nd and 3rd defendants were sued only as sons of the deceased and were not shown anywhere in the pleadings as legal representatives of the estate. A legal representative must be a person to whom a grant of letters of administration has been made under the Law of Succession Act. Suing a deceased person raises insoluble questions of service and responsibility and constitutes an abuse of process.

p. 2

Legal principles established

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  • A party wishing to sue the estate of a deceased person must sue the legal representatives of that estate; suing a deceased person is an abuse of court process.

Court orders

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  1. 1.The suit is struck out with costs to the defendants
  2. 2.The defendants' application dated 24th August 2017 is allowed

Authorities

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Legislation

  • Law of Succession Actsection 82
  • Law of Succession Actsection 3
  • Civil Procedure Actdefinition of legal representative

Cases cited (1)

  • Mary Nanjala Muhalya v Ambrose Kipruto
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction; application under Notice of Motion dated 24th August 2017 seeking striking out of the suit

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, "Irene Chepkimoi Cheserem v Joan Cherop & 2 others [2017] KEELC 392 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/392/eng@2017-12-14

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