Edward Thiong’o Wachira v Washington Nderitu Komu t/a Nderitu Komu & Co.Advocates & 2 others [2021] KEELC 35 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether an advocate can act for a deceased client absent substitution or a grant of letters of administration
Instructions ceased on death; without an administrator the firm had no instructions to file documents on behalf of the deceased
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.
Whether irregular documents filed partly for a deceased party must be struck out
No; the court ignored the irregular portions and treated the documents as belonging to the live 1st Respondent, applying Article 159(2)(d)
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.
Effect of failure to substitute a deceased party within one year
The suit against the deceased 3rd Respondent abated under Order 24 Rule 4(1) and (3) of the Civil Procedure Rules
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.
Legal principles established
#- 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
#- 1.The Applicant's Notice of Motion dated 16th February 2021 is dismissed
- 2.Costs to be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.