Stephen Mbuthia Kigotho v Richard Gathinieri Chongo & another; George Gaitho Chongo (Applicant) [2020] KEELC 136 (KLR)
The bottom line
#A Kenyan court refused to substitute a man for his deceased brother in a land suit because he had no letters of administration proving he could represent the estate.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant could be substituted for the deceased 1st Defendant
No - the Applicant failed to prove he is a legal representative of the deceased's estate, having produced only a Death Certificate and no letters of administration ad litem
Order 24 Rule 4 CPR requires substitution by the legal representative of the deceased defendant. Section 2 of the Civil Procedure Act defines a legal representative as one who in law represents the estate of a deceased person, which requires a grant under the Law of Succession Act. The Applicant produced no grant. Further, the estate of Chongo Guanga is already represented: the 1st Defendant was himself only a legal representative of that estate, and the 2nd Defendant, a co-administrator, continues under Section 81 of the Law of Succession Act, so the estate would remain represented even absent substitution.
Whether substitution is necessary given that the estate is otherwise represented
No - absent the Applicant replacing the 1st Defendant in his capacity as legal representative of the Estate of Chongo Guanga, there is no need for substitution since the 2nd Defendant is a co-administrator
The 1st Defendant was sued as legal representative of the Estate of Chongo Guanga, not in his personal capacity. Section 81 of the Law of Succession Act provides that on the death of one of several administrators, their powers vest in the survivors. The court, applying in re Estate of John Kabiro Wang'ombe (Deceased), noted that the surviving co-administrator retains the powers of an administrator, so the estate remains represented in the suit.
Legal principles established
#- Upon death of a defendant whose cause of action survives, the court shall cause the legal representative of the deceased defendant to be made a party and proceed with the suit; substitution must be with a person clothed with legal representation
- A person can only represent the estate of a deceased person where a grant of representation has been made under the Law of Succession Act; a grant may be limited for the purpose of a pending suit under Section 54 read with paragraph 14 of the Fifth Schedule
- Upon death of one of several administrators, the powers and duties of the administrators vest in the survivor(s) under Section 81 of the Law of Succession Act
Court orders
#- 1.The Notice of Motion Application dated 28th January 2020 is dismissed entirely with costs
- 2.It is so ordered
- Jurisdiction invoked
- Order 24 Rule 4 of the Civil Procedure Rules; Section 2 of the Civil Procedure Act; Sections 54 and 81 of the Law of Succession Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Mbuthia Kigotho v Richard Gathinieri Chongo & another; George Gaitho Chongo (Applicant) [2020] KEELC 136 (KLR)", Case Analysis (2020). Notice of Motion dated 28th January 2020 (court file number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/136/eng@2020-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.