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ELCAllowedE & L No. 191 of 2012· [2018] KEELC 3785 (KLR)

M’Marete M’Mukui v M’Arithi M’Kugwiria [2018] KEELC 3785 (KLR)

Environment and Land Court
16 April 2018
PNP.M. Njoroge
429 words in judgment
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The bottom line

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When a party to a Kenyan land case dies before judgment, their family with a limited grant can step in and the case continues.

What this practically means

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Executive summary

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By a notice of motion dated 25th January 2018, Titus Murithi Arithi and Terah Kirimi Arithi, sons of the late M'Arithi M'Kugwiria, sought to be substituted as legal representatives of their deceased father's estate as defendant in Environment and Land Case No. 191 of 2012 at Chuka. The deceased, who was the defendant in a land claim brought by the plaintiff, M'Marete Mukui, died on 29th August 2016 while the case awaited judgment, with submissions already filed. The applicants annexed the death certificate, the plaint, the defence the deceased had filed denying the claim, and a limited grant of letters of administration ad-litem obtained for the purpose of continuing the matter. In a supporting affidavit sworn by Terah Kirimi Arithi, they explained that the plaintiff had sued their father claiming land, that a defence had been filed, and that only judgment remained outstanding. When the application came up for inter partes hearing on 14th March 2018, it was not opposed. On that basis, the court allowed the application in its entirety, substituting the two sons as the deceased defendant's legal representatives so that the pending matter could proceed to judgment, and directed that costs be in the cause. The ruling was delivered in open court at Chuka on 16th April 2018 by P.M. Njoroge, Judge.

Key legal issues

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01

Substitution of a deceased defendant by holders of a limited grant ad-litem

Holding

The unopposed application for substitution was allowed in full; the sons of the deceased, holding a limited grant of administration ad-litem, were substituted as the defendant's legal representatives, with costs in the cause.

Reasoning

The deceased defendant died on 29th August 2016 while the case was pending judgment. His sons obtained limited letters of administration ad-litem for the purpose of continuing the matter, and the plaintiff did not oppose the application. The court therefore found no basis to refuse the substitution and allowed it, leaving only judgment pending in the main suit.

p. 1

Legal principles established

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  • Where a sole defendant dies pending judgment and persons holding a limited grant ad-litem seek substitution unopposed, the application for substitution should be allowed so the pending suit may proceed to judgment.

Court orders

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  1. 1.Titus Murithi Arithi and Terah Kirimi Arithi substituted as legal representatives of the estate of M'Arithi M'Kugwiria (deceased) as defendant in the case
  2. 2.Costs shall be in the cause
Jurisdiction invoked
Inherent power to order substitution of a deceased party; applicants held limited grant of letters of administration ad-litem

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, "M’Marete M’Mukui v M’Arithi M’Kugwiria [2018] KEELC 3785 (KLR)", Case Analysis (2018). E & L No. 191 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3785/eng@2018-04-16

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