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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 19th October 2019)· [2019] KEELC 826 (KLR)

William Boyon & 3 others v Benjamin Boiyon & 3 others [2019] KEELC 826 (KLR)

Environment and Land Court (or High Court) at Kericho
8 November 2019
JOJ. M. Onyango
1,344 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kericho court allowed one deceased party's substitution but refused to install a disputed administrator, ruling only a true legal representative can replace a deceased litigant in Kenya.

What this practically means

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Executive summary

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This ruling by J. M. Onyango, Judge, decided the Plaintiffs' Notice of Motion dated 19th October 2019 brought under Order 24 Rules 3(1) and (4) and Order 51 Rule 1 of the Civil Procedure Rules, seeking substitution of deceased parties in an ongoing suit. The applicants sought to enjoin Emily Chelangat Ngeny and Evaline Chepngetich Kilel as legal representatives of the deceased 4th Plaintiff, and John Cheruiyot Kemboi as legal representative of the estate of Benjamin Boiyon, the deceased 1st Defendant. The respondents partially opposed, asserting that historical differences made Kemboi unsuitable and that the family was unaware of the citation proceedings through which Kemboi obtained his grant; David Tonui Boiyo offered to take out letters of administration himself. The applicants argued that only one grant can subsist for one estate, citing Re Estate of Grace Nyambura Waruingi (Deceased), and challenged the validity and jurisdiction of the grant obtained by David Tonui Boiyo. Framing a single issue - whether Kemboi should be enjoined - the court held that the crux was whether the person seeking substitution was the true legal representative able to protect the estate's interests. Applying Article 159(2)(d) of the Constitution against technical objections, the court nonetheless declined to impose Kemboi, dismissing prayer 2 as he was not established as the deceased's legal representative. The unopposed prayer 1 was allowed. The parties were left free to regularise the succession and apply afresh, and, as the dispute involved members of the same family, each party was ordered to bear their own costs.

Key legal issues

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01

Whether the purported legal representative of the deceased 1st Defendant should be substituted in the suit

Holding

Prayer 2 dismissed; John Cheruiyot Kemboi was not held to be the true legal representative of the deceased, and the court declined to enjoin him, while allowing the unopposed substitution of the 4th Plaintiff's representatives

Reasoning

The court accepted that only one grant of representation can subsist for one estate, but noted the respondents' sworn assertion that the family was unaware of the citation proceedings. Given the disputed validity of the grant to Kemboi and the risk that he would not protect the estate's interests, the court found that technicalities could not be used to impose him. The unopposed substitution of the 4th Plaintiff's legal representatives was allowed, and parties were left free to regularise the succession and apply for substitution afresh.

p. 2

Legal principles established

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  • There cannot be two grants of letters of administration in respect of the estate of the same deceased person
  • Procedural technicalities cannot be used to impose on a suit a purported legal representative who will not protect the interests of the deceased's estate

Court orders

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  1. 1.Prayer 1 of the Notice of Motion allowed: Emily Chelangat Ngeny and Evaline Chepngetich Kilel, the legal representatives of the estate of David Boiyon (deceased 4th Plaintiff), made parties in place of the deceased 4th Plaintiff
  2. 2.Prayer 2 of the Notice of Motion dismissed: John Cheruiyot Kemboi not enjoined in place of the deceased 1st Defendant
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rules 3(1) and (4)
  • Civil Procedure RulesOrder 51 Rule 1
  • Magistrates Courts ActSection 3(2)
  • Civil Procedure ActOverriding objective
  • Constitution of KenyaArticle 159 (including 159(2)(d))

Cases cited (1)

  • Re Estate of Grace Nyambura Waruingi (Deceased)
    Nairobi HCC Succession Cause No. 1671 of 1993
Jurisdiction invoked
Order 24 Rules 3(1) and (4) and Order 51 Rule 1 of the Civil Procedure Rules

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, "William Boyon & 3 others v Benjamin Boiyon & 3 others [2019] KEELC 826 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 19th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/826/eng@2019-11-08

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