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ELCDismissedNot stated in the judgment (Petition filed 22nd July 2016)· [2021] KEELC 35 (KLR)

Edward Thiong’o Wachira v Washington Nderitu Komu t/a Nderitu Komu & Co.Advocates & 2 others [2021] KEELC 35 (KLR)

Environment and Land Court
16 December 2021
1,848 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner in a petition filed on 22nd July 2016 brought a Notice of Motion dated 16th February 2021 seeking to have the court record the death of the 3rd Respondent on 22nd October 2019 and to strike out an affidavit sworn on 18th November 2020 and written submissions filed on 20th November 2020 by Gathara Mahinda & Co. Advocates, which were purportedly made on the instructions of the deceased 3rd Respondent. The application was opposed by Geoffrey Mahinda, Advocate, who conceded the death but argued that his firm's representation persisted until formally terminated under Order 9 Rule 5 of the Civil Procedure Rules, and that the Applicant's failure to substitute the deceased within one year under Order 24 Rule 4 caused the suit against the 3rd Respondent to abate. The court (S. Okong'o, J) agreed that the advocate's instructions ceased on death and could only be revived by a legal representative, none having been appointed since no grant of letters of administration had issued; the affidavit and submissions were therefore irregular insofar as they purported to be for the deceased. However, the court declined to strike them out: they were also filed for the live 1st Respondent, the claim against the deceased had abated so the Applicant suffered no prejudice, nothing scandalous was contained in them, and striking out would delay a petition pending since 2016 contrary to Article 159(2)(d). The court ignored the irregular portions and treated the submissions as filed for the 1st Respondent only. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether an advocate can act for a deceased client absent substitution or a grant of letters of administration

Holding

Instructions ceased on death; without an administrator the firm had no instructions to file documents on behalf of the deceased

Reasoning

The court held that the advocate's instructions lapsed on the client's death and could only be revived by a legal representative. Since no grant of letters of administration had issued, the estate had no administrator to give fresh instructions, and the affidavit and submissions were irregular to the extent they were filed for the deceased 3rd Respondent.

p. 3
02

Whether irregular documents filed partly for a deceased party must be struck out

Holding

No; the court ignored the irregular portions and treated the documents as belonging to the live 1st Respondent, applying Article 159(2)(d)

Reasoning

The documents were filed for both the deceased and the live 1st Respondent; much of the affidavit responded to allegations against the advocate personally. The claim against the deceased had abated, so the Applicant suffered no prejudice. Striking out would delay a petition pending since 2016, contrary to Article 159(2)(d) on procedural technicalities.

p. 3
03

Effect of failure to substitute a deceased party within one year

Holding

The suit against the deceased 3rd Respondent abated under Order 24 Rule 4(1) and (3) of the Civil Procedure Rules

Reasoning

No application to substitute the deceased 3rd Respondent with his legal representative was made within one year of death as required under Order 24 Rule 4 of the Civil Procedure Rules. The court therefore recorded that the suit as against the 3rd Respondent had abated, and the Applicant could obtain no relief against him or his estate.

p. 3

Legal principles established

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  • Instructions given by a litigant to an advocate cease upon the litigant's death and can only be revived by the deceased's legal representative
  • An advocate on record for a deceased party, and for a live co-party, may have filings treated as made for the live party alone rather than struck out where no prejudice arises

Court orders

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  1. 1.The Applicant's Notice of Motion dated 16th February 2021 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 9 Rule 5
  • Civil Procedure RulesOrder 24 Rule 4(1) and (3)

Cases cited (1)

  • Republic v Makuyu Land Disputes Tribunal Committee & another Ex-Parte Joseph Kimani Peter
    [2014] eKLR
Jurisdiction invoked
Article 159(2)(d) of the Constitution (original petition before the court); procedural framework drawn from the Civil Procedure Rules (Orders 9 and 24)

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, "Edward Thiong’o Wachira v Washington Nderitu Komu t/a Nderitu Komu & Co.Advocates & 2 others [2021] KEELC 35 (KLR)", Case Analysis (2021). Not stated in the judgment (Petition filed 22nd July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/35/eng@2021-12-16

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