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ELCDismissedNot stated in the judgment· [2019] KEELC 2328 (KLR)

George J.K. Kabugi v Norah Atieno Olweny & 2 others [2019] KEELC 2328 (KLR)

High Court of Kenya
15 July 2019
644 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a request to replace a deceased defendant because the plaintiff gave no proof of death, date of death, or official authority to represent the estate.

What this practically means

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Executive summary

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By a Notice of Motion dated 17th April 2018 brought under Order 24 of the Civil Procedure Rules, the plaintiff sought substitution of the 2nd defendant with two women alleged to be his wives, Phelesiah Akoth Olweny and Anne Lenah Wanjiru Olweny, on the ground that the 2nd defendant was deceased. The 1st defendant did not respond; the 3rd defendant filed a replying affidavit contending there was no proof of death and no proof that the proposed substitutes were the deceased's legal representatives. The application was disposed of on written submissions. The court identified three difficulties. First, although the application rested entirely on the alleged death of the 2nd defendant, no death certificate or other acceptable evidence of death was annexed, and the applicant did not state how he learned of the death; the court was therefore not persuaded the 2nd defendant was deceased, and would have dismissed the application on that ground alone. Secondly, even if death were established, the date of death was necessary because Order 24 rule 3(2) requires a substitution application within one year of death, failing which the suit abates; the application sought substitution only without addressing abatement. Thirdly, applying the definition of 'legal representative' in Section 2 of the Civil Procedure Act and Trouistik Union International v Jane Mbeyu, substitution requires proof of a grant of letters of administration, none of which was annexed. The Notice of Motion was dismissed with costs to the 3rd defendant. The judge also regretted a delay in delivery of the ruling occasioned by medical leave.

Key legal issues

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01

Proof of death of the 2nd defendant

Holding

No certificate of death or other acceptable evidence of death was annexed; the court was not persuaded the 2nd defendant is deceased

Reasoning

The application was premised solely on the assertion that the 2nd defendant is deceased. No death certificate or other acceptable evidence was annexed, and the applicant did not state how he became aware of the death. On that basis alone the court was prepared to dismiss the application, since the foundational fact was unproven despite the 3rd defendant's contrary deposition.

p. 1
02

Abatement and the one-year window for substitution

Holding

The application was for substitution only, yet without the date of death the court could not determine whether the claim against the 2nd defendant had abated

Reasoning

Even assuming death was established, the date of death matters because Order 24 rule 3(2) requires a substitution application to be made within one year of death, failing which the suit abates. The application sought substitution only and did not address abatement, so the applicant could not show the claim against the deceased remained alive.

p. 1
03

Legal representative status of the proposed substitutes

Holding

Without a grant of letters of administration annexed, there was no proof that the two proposed substitutes are legal representatives of the estate

Reasoning

Section 2 of the Civil Procedure Act defines a legal representative as a person who in law represents the estate of a deceased person. Authorities, including Trouistik Union International v Jane Mbeyu, require a grant of letters of administration before one may sue or be sued for a deceased's estate. The applicant neither asserted nor annexed any grant, so the requirement was unmet.

p. 1

Legal principles established

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  • An application for substitution of a deceased party must be supported by acceptable evidence of death, and the applicant must show the proposed substitutes hold a grant of letters of administration
  • Under Order 24 rule 3(2), an application for substitution must be made within one year of death, failing which the suit abates

Court orders

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  1. 1.Notice of Motion dated 17th April 2018 dismissed with costs to the 3rd defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 24
  • Civil Procedure RulesOrder 24 rule 3(2)
  • Civil Procedure ActSection 2

Cases cited (1)

  • Trouistik Union International & another v Jane Mbeyu & another
    [1993] eKLR
Jurisdiction invoked
Order 24 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, "George J.K. Kabugi v Norah Atieno Olweny & 2 others [2019] KEELC 2328 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2328/eng@2019-07-15

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