Julius Gichobi Githaiga & another v Jonathan Njuki Githaiga & another [2018] KEELC 4669 (KLR)

High Court of Kenya

26 January 2018

BOB.N. Olao

485 words in judgment

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The bottom line

A Kenyan court ruled that only someone with a grant of letters of administration can replace a deceased defendant in a lawsuit.

What this practically means

Executive summary

This ruling by B.N. Olao J at Kerugoya determined a Notice of Motion dated 2nd August 2017 filed by Janet Wangechi Ghichobi, who has authority to plead and act for her father Julius Gichobi Githaiga, the plaintiff. The applicant sought to substitute the deceased defendant, Jonathan Njuki Githaiga, with his wife Phillis Wanjiku Njuki. The application was opposed on grounds that no person had been appointed as legal representative of the deceased defendant capable of being substituted. The court considered Order 24 Rule 4(1) of the Civil Procedure Rules, which requires the legal representative of a deceased defendant to be made a party, and the definitions of 'legal representative' under Section 2 of the Civil Procedure Act and 'personal representative' under Section 2 of the Law of Succession Act, being an executor or a person holding a grant of letters of administration. The court found that Phillis Wanjiku Njuki had taken out neither a limited nor a full grant of letters of administration and was not an executor of her late husband's estate. Following Trouistik Union International v Mbeyo and Virginia Edith Wamboi v Joash Ochieng Ougo, the court held that until she is appointed legal representative she cannot be substituted and lacks the necessary locus. The Notice of Motion was accordingly dismissed, with no order as to costs.

Key legal issues

Whether a person without a grant of letters of administration or executorship can be substituted for a deceased defendant

Holding

No - substitution requires the proposed party to be a legal representative of the deceased's estate

Reasoning

Order 24 Rule 4(1) requires the court to cause the legal representative of a deceased defendant to be made a party. A legal representative under Section 2 of the Civil Procedure Act is a person who in law represents the estate, and under the Law of Succession Act this means an executor or administrator, i.e. one holding a grant. Phillis Wanjiku Njuki has taken out neither a limited nor full grant and is not an executor, so she lacks the necessary locus to be substituted. The authorities cited by the court support this position.

p. 2

Legal principles established

Only a legal representative of a deceased party - one with a grant of letters of administration or an executor - may be substituted for a deceased defendant under Order 24 Rule 4(1)

Court orders

1.The Notice of Motion dated 2nd August 2017 is dismissed with no order as to costs

Authorities

Legislation

Civil Procedure RulesOrder 24 Rule 4(1)
Civil Procedure ActSection 2
Law of Succession ActSection 2

Cases cited (2)

Trouistik Union International & Another v Mbeyo & Another
[1993] K.L.R 230
Virginia Edith Wamboi v Joash Ochieng Ougo & Another
[1982-88] 1 K.A.R.

Jurisdiction invoked: Order 24 Rule 4(1) of the Civil Procedure Rules; Section 2 of the Civil Procedure Act; Section 2 of the Law of Succession Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Julius Gichobi Githaiga & another v Jonathan Njuki Githaiga & another [2018] KEELC 4669 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4669/eng@2018-01-26

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