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ELCAllowedPMCC No. 136 of 2009 - Kangema (Appeal)· [2018] KEELC 3907 (KLR)

Naomi Njeri Githinji & 2 others v John Kimani Kamau [2018] KEELC 3907 (KLR)

High Court of Kenya
20 March 2018
JKJ G Kemei
1,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's High Court confirmed that you cannot substitute a deceased person in a lawsuit until their family is formally appointed as legal representatives of the estate.

What this practically means

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Executive summary

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This was a first appeal to the High Court at Murang'a (J G Kemei, J) against the ruling of Principal Magistrate J.O Magori dated 13.6.2012 in PMCC No. 136 of 2009, Kangema. The Respondent had sued Githinji Kamau for eviction from land parcel LOC. 10/KAHUTI/3787. Pending suit, the Defendant died and the Respondent applied under Order 24 rules 1 and 5 and Order 40 of the Civil Procedure Rules to substitute the widow and sons of the deceased as Defendants and to restrain them from burying the deceased on the suit land. The trial Magistrate allowed the application, relying on Order 24 rule 5 and Order 51 rule 10(2), and issued injunctive orders. On appeal, the Appellants argued the trial court lacked jurisdiction to substitute persons not appointed as legal representatives of the estate and to injunct non-parties. The court reduced the four grounds to two issues and agreed with the Appellants on both. It held that under Order 24 rule 3 a legal representative must first be appointed before substitution, that no such application was on record, and that ad corrigenda bona representation was the appropriate route for preservation of the suit property. Having been improperly substituted, the Appellants were not parties, and injunctive orders could not issue against them. The appeal was allowed, the lower court ruling set aside, with costs of the appeal and of the lower court application awarded to the Appellants.

Key legal issues

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01

Whether substitution of a deceased Defendant could be ordered before appointment of legal representatives of the estate

Holding

The trial Magistrate erred in law in ordering substitution where the proposed substitutes had not been appointed legal representatives; ad corrigenda bona representation should have been sought first

Reasoning

Order 24 rule 3 of the Civil Procedure Rules requires that the legal representative of a deceased party be made a party. No application for appointment of a legal representative was on record. For purposes of preserving the suit property, ad corrigenda bona representation was the appropriate form. The appointment of a legal representative gives the appointee locus to be a party to a suit, so substitution without such appointment was contrary to an express statutory provision and not a mere technicality.

p. 3
02

Whether injunctive orders could lawfully issue against the Appellants

Holding

Having been improperly substituted, the Appellants were not parties to the suit and the injunction issued against them was incompetent

Reasoning

The court reasoned sequentially: since the substitution was flawed for want of prior appointment as legal representatives, the Appellants were never properly joined as parties. An injunction is a remedy directed at parties to proceedings; therefore orders restraining the Appellants from burying the deceased on the suit land could not validly issue against non-parties. The appeal on this ground therefore succeeded.

p. 3

Legal principles established

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  • A legal representative of a deceased party's estate must first be appointed before an application for substitution can be made
  • Injunctive orders cannot issue against persons who are not parties to the suit

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling of the lower Court is set aside
  3. 3.The Respondent to meet the costs of this appeal and of the application in the lower Court

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 1
  • Civil Procedure RulesOrder 24 rule 3(1) and (2)
  • Civil Procedure RulesOrder 24 rule 5
  • Civil Procedure RulesOrder 39 rules 1, 2 and 3
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3, 4 and 5
  • Civil Procedure RulesOrder 51 rule 10(2)
  • Civil Procedure ActSection 3 and 3A
  • Constitution of Kenya, 2010Article 159(2)(d)
On appeal from
Principal Magistrate's Court
PMCC No. 136 of 2009 - Kangema
Jurisdiction invoked
First appeal from the Principal Magistrate's Court (ruling of 13.6.2012 in PMCC No. 136 of 2009), initially filed at the High Court at Nyeri and transferred to this Court on 10.02.2017

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, "Naomi Njeri Githinji & 2 others v John Kimani Kamau [2018] KEELC 3907 (KLR)", Case Analysis (2018). PMCC No. 136 of 2009 - Kangema (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3907/eng@2018-03-20

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