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ELCPartially AllowedNot stated in ruling (suit concerning LR No. 6845/124, Mathare, Nairobi)· [2018] KEELC 1652 (KLR)

Doricah Mideva Miroyo & 27 others v Ruth Wambui Wairimu & 3 others [2018] KEELC 1652 (KLR)

Environment and Land Court
26 July 2018
EOE. O. OBAGA
1,262 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out three defendants substituted for a deceased party because none was the estate's legal representative.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (E. O. Obaga, J) determined two applications arising from the substitution of a deceased defendant, Wairimu Kiyanjui (registered owner of LR No. 6845/124 in Mathare, Nairobi), by the first, second and third defendants. The substitution had been allowed on 30th June 2017 on an application by some of the plaintiffs, whose names for the substitutes were drawn from a newspaper obituary advertisement. The third defendant, a daughter-in-law of the deceased, sought to be disjoined, a declaration that proceedings against her were void ab initio, and an order prohibiting further claims against her. All three defendants sought to have their names struck out. The court framed a single issue: whether the applicants were improperly enjoined. It held that a deceased defendant can only be substituted by a legal representative, defined in Section 2 of the Civil Procedure Act as a person who in law represents the estate of a deceased person. None of the three applicants held letters of administration, and a third party had applied for probate of the deceased's will in a pending succession cause. The plaintiffs' knowledge of the deficiency, evidenced by their citation in the Family Division, could not justify delaying the suit pending its outcome. The court struck out the names of all three defendants with costs to them, and limited the success of the applications to that extent, declining the wider declaratory and prohibitory relief sought. Judgment delivered on 26th July 2018 at Nairobi.

Key legal issues

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01

Whether the first, second and third defendants were improperly enjoined in the suit by way of substitution of the deceased

Holding

Yes; none of them was an administrator or legal representative of the deceased's estate, so their substitution was improper

Reasoning

The three applicants were joined by substitution of the deceased defendant without the court knowing they were not legal representatives. The first and second are children of the deceased who have not taken out letters of administration, and the third is a daughter-in-law. There is a pending succession cause in which a different person, David Waweru Kinyanjui, has applied for probate of the deceased's will. Substitution of a deceased party is lawful only through a legal representative as defined in Section 2 of the Civil Procedure Act. The respondents knew of the deficiency, as shown by their citation in the Family Division, and could not delay the suit pending its outcome.

p. 3

Legal principles established

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  • A deceased defendant can only be substituted by her or his legal representative.
  • A legal representative is a person who in law represents the estate of a deceased person.

Court orders

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  1. 1.The names of the first, second and third defendants are struck out from the suit, with costs to them
  2. 2.This is the extent to which the two applications succeed

Authorities

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Legislation

  • Civil Procedure ActSection 2
Jurisdiction invoked
Original jurisdiction under the Civil Procedure Act (substitution and joinder of parties)

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, "Doricah Mideva Miroyo & 27 others v Ruth Wambui Wairimu & 3 others [2018] KEELC 1652 (KLR)", Case Analysis (2018). Not stated in ruling (suit concerning LR No. 6845/124, Mathare, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1652/eng@2018-07-26

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