Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherELC Appeal No. 7 of 2006 (Formerly Eldoret HCC No. 41 of 1988)· [2019] KEELC 4763 (KLR)

Erastus Ndungu Charagu & another v Isaac Mwangi Mwaura & 5 others (Environment and Land Appeal 7 of 2006) (4 February 2019) (Directions) [2019] KEELC 4763 (KLR)

Environment and Land Court
4 February 2019
MNMwangi Njoroge
697 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Kenyan courts cannot enforce eviction orders against people who have died — you must first substitute their estates' legal representatives before proceeding.

What this practically means

#

Executive summary

#
This is a ruling on an application dated 17th September 2018 by the applicant, Erastus Ndungu Charagu, in a long-running land matter (formerly Eldoret HCC No. 41 of 1988, transferred to the Environment and Land Court at Kitale as ELC Appeal No. 7 of 2006). The applicant sought reissue of an eviction order made on 11/11/2004 against the respondents in respect of land known as Sinyerere Kipsaina Block 3/7145/2, a direction to the OCS Kachibora Police Station to enforce compliance, and an order that the respondents surrender cancelled titles to the Land Registrar, Trans Nzoia County. The respondents opposed, contending that the 1st, 3rd, 4th, 5th and 6th respondents are deceased and require substitution before any orders issue, that the 2nd respondent is elderly and senile and cannot give instructions, that eviction orders issue only at a final stage, and that the ruling of 22/5/2007 had determined the eviction question. An affidavit by Gideon Barongo Advocate exhibited death certificates for the deceased respondents. Mwangi Njoroge J sympathised with the applicant's long frustration but held that orders cannot be targeted at deceased persons. The court deferred the Chamber Summons until substitution is undertaken, directing the applicant to identify and enjoin the administrators of the deceased respondents' estates, or alternatively to file citations where no letters of administration have been taken out, so that orders can be directed at proper representatives of the estates.

Key legal issues

#
01

Whether eviction orders can be issued against deceased respondents before substitution

Holding

The application was deferred; orders cannot be targeted at deceased persons, and substitution of the legal representatives of the deceased respondents must first be undertaken.

Reasoning

The respondents filed grounds of opposition and an advocate's affidavit showing that the 1st, 3rd, 4th, 5th and 6th respondents are deceased, with death certificates exhibited, and that only the 2nd respondent survives but is elderly and unable to give instructions. The court, though sympathising with the applicant's prolonged predicament, agreed with counsel for the respondents that no orders can issue against deceased persons until substitution or citation enables the proceedings to be prosecuted against proper legal representatives of the estates.

p. 2

Legal principles established

#
  • Court orders cannot be issued against or enforced against deceased persons; substitution or joinder of their legal representatives is required before such orders can issue

Court orders

#
  1. 1.The Chamber Summons dated 17/9/2018 is deferred till substitution has been undertaken in this suit
  2. 2.The applicant shall as soon as possible either identify the administrators of the estates of the deceased respondents or enjoin them so that the orders of the court may be targeted at specific persons representing the estates
  3. 3.Alternatively, if no letters of administration have been taken out in respect of those estates, the applicant may file citations to enable the matter to move
Jurisdiction invoked
Original suit transferred from the High Court (formerly Eldoret HCC No. 41 of 1988) to the Environment and Land Court at Kitale; no specific constitutional or statutory provision cited

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Erastus Ndungu Charagu & another v Isaac Mwangi Mwaura & 5 others (Environment and Land Appeal 7 of 2006)  (4 February 2019) (Directions) [2019] KEELC 4763 (KLR)", Case Analysis (2019). ELC Appeal No. 7 of 2006 (Formerly Eldoret HCC No. 41 of 1988). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4763/eng@2019-02-04

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