Mary Njoki Simon v Monicah Wanjiru Wangonya [2020] KEELC 2703 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed you can replace a deceased opponent in a land case using an ad litem grant, and old tribunal awards remain enforceable.
What this practically means
#Executive summary
#Key legal issues
#Substitution of a deceased defendant under Order 24 Rule 4
The substitution application was properly premised on Order 24 Rule 4 and the Appellant had obtained a valid limited grant ad litem; the application should have been allowed.
The court examined Order 24 Rule 4 and paragraph 14 of the Fifth Schedule to the Law of Succession Act, which permits a nominee of a party to a pending suit to obtain limited letters of administration ad litem. The Respondent's objections went only to procedure, and the citation lodged was permissible under the Succession Act. The court found the procedure lawful and the Respondent's refusal to substitute an attempt to frustrate the suit.
Effect of adoption of a Land Dispute Tribunal award by the court
The award adopted on 22/12/2005 became an order of the court, unchallenged, so the trial Magistrate erred in holding the matter was based on repealed law.
Although the Land Disputes Act was repealed by section 31 of the Environment and Land Court Act, section 23(3) of the Interpretation and General Provisions Act preserved decisions and awards of defunct tribunals and adoption judgments. Once adopted, the award changed character to an order of the court, and the trial Magistrate had earlier recognised this in previous rulings. Striking out the substitution application for being based on repealed law was therefore an error.
Scope of the trial Magistrate's ruling
The Magistrate erred by addressing the earlier application of 29/02/2016 instead of confining herself to the substitution application.
The ruling under appeal ought to have been restricted to the single question of whether the deceased defendant should be substituted by his legal representative, leaving the execution application to be heard on merit. By addressing the initial application of 29/02/2016, the Magistrate overstepped and failed to make the necessary finding on substitution.
Legal principles established
#- Decisions and awards of defunct Land Disputes Tribunals, and adoption judgments by Magistrates' Courts, were preserved by section 23(3) of the Interpretation and General Provisions Act.
- Once a tribunal award is adopted as a judgment of the court, it changes character into an order of the court and is not affected by repeal of the tribunal's enabling statute.
- A party to a pending suit may apply for limited grant ad litem for substitution of a deceased party under the Law of Succession Act and the Civil Procedure Rules.
Court orders
#- 1.The appeal is allowed
- 2.The ruling of the Learned Magistrate issued on 26/6/19 is set aside
- 3.The application for substitution is allowed
- 4.Costs of the Appeal and the application in the lower court to be paid by the Respondent
- On appeal from
- Chief Magistrate's Court (Murang'a)
- Land Dispute Tribunal Case No. 66 of 2005 (ruling of 27/6/2019)
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court ruling; transitional framework under sections 30 and 31 of the Environment and Land Court Act and Gazette Notice No. 16268 practice directions
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kimotho v Kinuriu & 2 others[2023] KEELC 20082 (KLR)28 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "Mary Njoki Simon v Monicah Wanjiru Wangonya [2020] KEELC 2703 (KLR)", Case Analysis (2020). Murang'a ELC Appeal arising from Memorandum of Appeal dated 2/7/2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2703/eng@2020-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.