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ELCDismissedELC 27 of 2015 (consolidated suits incl. Nairobi HCCC No. 955 of 1995 and HCCC No. 2387 of 1987)· [2020] KEELC 3020 (KLR)

Sheva Hotels Limited v Shaibu Shosi Famau & 8 Others [2020] KEELC 3020 (KLR)

Environment and Land Court
29 April 2020
JOJ. O. Olola
1,799 words in judgment
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The bottom line

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A Kenyan court ruled that a living but incapacitated man cannot be replaced in a lawsuit under Order 24, and his daughter needed a proper guardianship appointment first.

What this practically means

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Executive summary

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By a Notice of Motion dated 19th December 2018, Elizabeth Muthoni Ritho sought her substitution for Samuel Kanogo Ritho wherever he appeared in consolidated proceedings before the Environment and Land Court at Malindi - as plaintiff in HCCC No. 955 of 1995, defendant in HCCC No. 2387 of 1987 and interested party in ELC 27 of 2015 - on the ground that he had suffered a debilitating stroke in 2009 and was undergoing treatment in the United Kingdom, and that his court-appointed guardian ad litem, his wife Gladys Luhunga Ritho, died on 14th October 2013. The application invoked Order 24 Rules 3(1) and 4(1) of the Civil Procedure Rules. All parties opposed it: Sheva Hotels Ltd, Thuita Kiiru & Company Advocates for Samuel Kanogo Ritho, the 6th to 8th Defendants, and Giovanni Oss and Barbara Biachi, arguing lack of locus standi, that the guardianship order was interim and lapsed, that guardianship cannot be delegated, and that Order 24 applies only to deceased parties. The Court (Olola J) held that Order 24 governs substitution of deceased parties and Samuel Kanogo Ritho, though unwell, is alive. The mother's guardianship ended at her death, and the Applicant gave no explanation for failing for over five years to seek her own appointment as guardian ad litem from the High Court Family Division, the only court competent to inquire into capacity. Lacking such appointment, the application was dismissed with no order as to costs, the Court sympathising with the family circumstances.

Key legal issues

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01

Applicability of Order 24 substitution provisions

Holding

Order 24 Rules 3(1) and 4(1) govern substitution of deceased plaintiffs and defendants; they do not apply to a living party, however incapacitated

Reasoning

The Court examined Order 24 Rule 3(1), which deals with substitution of legal representatives of deceased parties. Samuel Kanogo Ritho, though suffering a stroke and undergoing treatment in the United Kingdom, remains alive. Substitution in three capacities (plaintiff, defendant, interested party) was therefore misconceived under those provisions, and counsel for Ritho remained on record with instructions to oppose.

p. 3
02

Locus standi of the Applicant

Holding

The Applicant had no locus standi; her mother's guardianship ad litem ended on death and no fresh appointment was obtained

Reasoning

Gladys Luhunga Ritho had been appointed guardian ad litem of Samuel Kanogo Ritho, but died on 14th October 2013. The Applicant offered no explanation for over five years' delay in seeking appointment from the High Court Family Division for herself and co-administrators. Without such appointment she could not appear or apply for Ritho in these proceedings.

p. 3

Legal principles established

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  • Substitution under Order 24 Rules 3(1) and 4(1) of the Civil Procedure Rules applies only to deceased parties; a living party cannot be substituted on that basis
  • An appointment as guardian ad litem terminates upon the death of the guardian and cannot be delegated
  • Only the High Court Family Division may inquire into a person's capacity and appoint a guardian ad litem

Court orders

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  1. 1.The Applicant's Notice of Motion dated 19th December 2018 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 3(1)
  • Civil Procedure RulesOrder 24 Rule 4(1)
Jurisdiction invoked
Order 24 Rules 3(1) and 4(1) of the Civil Procedure Rules (invoked by the Applicant for substitution)

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, "Sheva Hotels Limited v Shaibu Shosi Famau & 8 Others [2020] KEELC 3020 (KLR)", Case Analysis (2020). ELC 27 of 2015 (consolidated suits incl. Nairobi HCCC No. 955 of 1995 and HCCC No. 2387 of 1987). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3020/eng@2020-04-29

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