Daniel Kahara Wakigo v Salome Wangui Chege & another [2019] KEELC 406 (KLR)
The bottom line
#Kenya's High Court struck out an appeal because a deceased party was never replaced within one year, killing the case permanently.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure to substitute a deceased defendant's legal representative within one year under Order 24 rule 4
The suit abates as against the deceased defendant and ceases to exist; no fresh suit may be brought on the same cause of action under Order 24 rule 7, and the court has no jurisdiction to hear or determine an abated suit
Order 24 rule 4(3) provides that where no application for substitution is made within one year, the suit abates against the deceased defendant. Rule 7 bars a fresh suit on the same cause of action. Following Kenya Farmers Cooperative Union Ltd v Charles Murgor, hearing an abated suit is an exercise in futility and a grave error of jurisdiction that can be raised at any time. The appellant admitted the 1st respondent died and substitution was never done, so the appeal was incompetent.
Capacity of the 2nd respondent (Public Trustee) to represent the estate
The Public Trustee lacked capacity as it had been removed as administrator of the estate by the High Court and replaced by the administrators appointed by Honourable L. Kimaru
A grant of representation intestate dated 4th November 2013 issued in Nairobi High Court Succession Cause No. 202 of 1990 removed the 2nd respondent as administrator of the estate of Chege Kirumba (deceased). The court agreed with the applicants' submissions that the 2nd respondent relinquished representation of the estate upon appointment of the new administrators, relying on Trouistik Union International v Jane Mbeyu on the necessity of being a legal representative of a deceased party.
Whether the objection qualified as a proper preliminary objection
The objection rested on points of law (abatement and lack of legal personality/capacity) and was properly upheld as a preliminary objection
The court applied the Mukisa Biscuits definition, which confines preliminary objections to pure points of law argued on the assumption that all facts pleaded by the other side are correct. The death of the 1st respondent, the failure to substitute, and the resulting abatement are matters of law arising from admitted facts, not disputed facts requiring ascertainment or exercise of judicial discretion, and thus qualified.
Legal principles established
#- A suit that has abated ceases to exist and the court lacks jurisdiction to hear and determine it; this defect can be raised at any time
- A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct
Court orders
#- 1.The preliminary objection is upheld
- 2.The appeal is struck out with costs to the applicants
- 3.In the alternative, the appeal is summarily rejected under Section 79B of the Civil Procedure Act
- On appeal from
- Chief Magistrate's Court, Milimani
- Nairobi CMCC No. 1750 of 1995
- Jurisdiction invoked
- Appellate jurisdiction of the High Court over appeals from the subordinate court (Civil Procedure Act, Section 79B invoked for summary rejection)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Kahara Wakigo v Salome Wangui Chege & another [2019] KEELC 406 (KLR)", Case Analysis (2019). Nairobi High Court Civil Appeal (arising from Nairobi CMCC No. 1750 of 1995). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/406/eng@2019-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.