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ELCDismissedOriginating Summons dated 25/10/2012 (application dated 8/2/2021)· [2021] KEELC 448 (KLR)

Kenya African National Traders & 4 others v Zephania Kilungu Kilonzo & 8 others [2021] KEELC 448 (KLR)

Environment and Land Court
9 December 2021
1,761 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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A Kenyan court ruled you cannot revive a suit against a deceased defendant until a personal representative is formally appointed through succession proceedings.

What this practically means

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Executive summary

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The plaintiff union sued, by amended originating summons dated 4/8/2016, seeking a declaration that it had acquired title to LR Nos Kakuzi/Ithanga/Gituamba Blocks 1/862, 863 and 864 (including subdivisions 1562-1601 registered in the name of the 9th defendant, Harmar Ventures Company Limited) by adverse possession, and cancellation of the registration of the deceased 1st defendant, Zephania Kilungu Kilonzo. Upon learning of the 1st defendant's death, the plaintiff moved the court by notice of motion dated 8/2/2021 seeking extension of time to apply for substitution, substitution of the deceased's legal representatives, and reinstatement of the suit against the deceased. The 2nd and 5th defendants opposed, citing inordinate delay, failure to identify the personal representatives, and failure to invoke succession proceedings. Eboso J framed two questions: whether the orders could issue absent a duly appointed personal representative, and whether the plaintiff had met the criteria for enlarging time for substitution. Relying on Section 79 of the Law of Succession Act and Order 24 rules 4(1) and 7(2) of the Civil Procedure Rules, the court held that only a duly appointed personal representative can be substituted for a deceased defendant and that revival cannot issue in the absence of one; appointment must precede the plea for revival and substitution. The court declined to pronounce on the enlargement-of-time criteria. The application was rejected with costs to the plaintiff.

Key legal issues

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01

Whether revival and substitution of a deceased defendant can be ordered without a duly appointed personal representative

Holding

No - identification and appointment of a personal representative must precede the plea for revival and substitution; without one the application is premature

Reasoning

Section 79 of the Law of Succession Act vests the deceased's property in the executor or administrator granted representation. Order 24 rule 4(1) of the Civil Procedure Rules requires the legal representative of a deceased defendant to be made a party. The court construed these provisions together to mean that only a duly appointed personal representative can be substituted for a deceased defendant, and that revival under Order 24 rule 7(2) presupposes such a representative. As none had been identified, the application failed.

p. 3
02

Whether the court should pronounce on the criteria for enlarging time for substitution

Holding

The court declined to pronounce itself on the second question, holding it inappropriate at that stage

Reasoning

Having found the application premature because no personal representative existed, the court reasoned that the plaintiff might bring a subsequent application after appointing a representative. It considered it in the interest of justice that the judge seized of that future application should make the pronouncement on the enlargement-of-time criteria.

p. 3

Legal principles established

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  • The person to be substituted in place of a deceased defendant is the duly appointed personal representative of the deceased defendant
  • A revival order under Order 24 rule 7(2) cannot issue in the absence of a duly appointed personal representative
  • No one can be held legally accountable on behalf of a deceased person until a personal representative is duly appointed

Court orders

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  1. 1.The application is rejected on the ground that the revival and substitution orders sought cannot be made in the absence of a duly appointed and identifiable personal representative of the deceased defendant
  2. 2.The plaintiff shall bear costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 7(2)
  • Civil Procedure RulesOrder 24 rule 4(1)
  • Law of Succession ActSection 79

Cases cited (2)

  • Kishor Kumar Dhanji Varsani v Amolak Singh and another
    CA No. 199 of 2010
  • Joseph Gachuhi Muthanji v Mary Wambui Njuguna
    (2014) eKLR
Jurisdiction invoked
Order 24 rule 7(2) and Order 24 rule 4(1) of the Civil Procedure Rules, read with Section 79 of the Law of Succession Act

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, "Kenya African National Traders & 4 others v Zephania Kilungu Kilonzo & 8 others [2021] KEELC 448 (KLR)", Case Analysis (2021). Originating Summons dated 25/10/2012 (application dated 8/2/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/448/eng@2021-12-09

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