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ELCDismissedNot stated in judgment· [2018] KEELC 1646 (KLR)

Ann Wanjiku Karuga & another v Francis Kingori Gathitu & 19 others [2018] KEELC 1646 (KLR)

Environment and Land Court
20 September 2018
1,815 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 plaintiffs, children and successors of the late Alfred Munge Macharia, registered owner of Plot No. 95 Kijabe-Hill (Nakuru/Subukia/95), sued various defendants for vacant possession, eviction and damages, alleging unlawful entry and occupation. Defendants 3 to 17 and 20 denied the plaintiffs' title, claimed they purchased the land in 1994, relied on a decree in Nakuru CM Land Disputes Case No. 1 of 2009, pleaded adverse possession by counterclaim, and alleged the plaintiffs' title was fraudulently procured. By a notice of motion dated 21 April 2018 under Order 51 Rule 1 and Order 8 Rules 4, 5 and 8 of the Civil Procedure Rules, the plaintiffs sought leave to amend the plaint to substitute six persons for the 1st, 2nd, 7th, 8th, 14th and 17th defendants, said to have died. The opposing defendants filed grounds of opposition, contending the application was misconceived and that there was no material showing the proposed persons were legal representatives of the deceased, nor when the defendants died or the proposed persons were appointed. Munyao Sila J held that substitution is governed by Order 24 Rule 4, which requires the person brought on board to be a legal representative of the deceased defendant, and under Order 24 Rule 5 the court must determine that question. No evidence established the proposed persons as legal representatives, so substitution was refused. Death certificates existed for only four of the six deceased; no orders could issue regarding the 8th and 14th defendants. Since the 7th defendant died in 2000, before the suit, the case and any counterclaim against him were struck out. The application was dismissed with costs.

Key legal issues

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01

Whether the persons proposed for substitution qualify as legal representatives under Order 24 Rule 4

Holding

They do not, and substitution was refused

Reasoning

Order 24 Rule 4 requires the court to cause the legal representative of a deceased defendant to be made a party. The plaintiffs did not demonstrate that the six named persons held letters of administration or otherwise represented the estates. Under Order 24 Rule 5 the question was determined by the court, which found no evidence of legal representation.

p. 2
02

Whether orders could be made in respect of the 8th and 14th defendants whose deaths were not proved

Holding

No orders made as no acceptable proof of death was produced

Reasoning

Certificates of death were annexed for only four of the six deceased defendants. For Sarah Wanjiru Kanyi and Samwel Njoroge Kariuki there was no certificate or other acceptable proof of death, so the court could not presume death or make substitution orders concerning them.

p. 2
03

Status of the suit against the 7th defendant who died before the suit was filed

Holding

The suit and any counterclaim against him were struck out

Reasoning

Charles Njuguna Macharia died on 13 May 2000, before the plaint filed on 14 December 2011. A dead person cannot be sued; the plaint against him was a nullity and the court struck out the case and any counterclaim he may have filed.

p. 3

Legal principles established

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  • There can be no substitution of a deceased litigant unless the person sought to be brought on board is a legal representative of the deceased party
  • Where a question arises as to whether a person is a legal representative of a deceased party, the court must determine it

Court orders

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  1. 1.The application dated 21 April 2018 is dismissed with costs
  2. 2.The case against the 7th defendant, Charles Njuguna Macharia, and any counterclaim he may have filed, is struck out

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 24 Rule 4
  • Civil Procedure Rules, 2010Order 24 Rule 5
  • Civil Procedure Rules, 2010Order 8 Rules 4, 5 and 8
  • Civil Procedure Rules, 2010Order 51 Rule 1
Jurisdiction invoked
Order 24 Rules 4 and 5 and Order 51 Rule 1, Civil Procedure Rules, 2010

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, "Ann Wanjiku Karuga & another v Francis Kingori Gathitu & 19 others [2018] KEELC 1646 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1646/eng@2018-09-20

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