Ann Wanjiku Karuga & another v Francis Kingori Gathitu & 19 others [2018] KEELC 1646 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the persons proposed for substitution qualify as legal representatives under Order 24 Rule 4
They do not, and substitution was refused
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.
Whether orders could be made in respect of the 8th and 14th defendants whose deaths were not proved
No orders made as no acceptable proof of death was produced
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.
Status of the suit against the 7th defendant who died before the suit was filed
The suit and any counterclaim against him were struck out
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.
Legal principles established
#- 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
#- 1.The application dated 21 April 2018 is dismissed with costs
- 2.The case against the 7th defendant, Charles Njuguna Macharia, and any counterclaim he may have filed, is struck out
- Jurisdiction invoked
- Order 24 Rules 4 and 5 and Order 51 Rule 1, Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.