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ELCStruck OutNot stated in judgment· [2021] KEELC 4370 (KLR)

John Musyoka Musembi v Joseph Kyanya Kyengo; Priscilla Musyoka Musembi (Applicant) [2021] KEELC 4370 (KLR)

Environment and Land Court
12 February 2021
OAO.A. Angote
857 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a widow's application to continue her late husband's land case because she filed it before obtaining letters of administration.

What this practically means

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Executive summary

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By a Notice of Motion dated 29th November, 2019, Priscilla Musyoka Musembi sought to be substituted for the deceased plaintiff, her husband John Musyoka Musembi, who died on 8th March, 2019, with costs of the application to be in the cause. She deponed that the cause of action related to land and survived the deceased, and that she was in the process of petitioning for letters of administration. The Defendant raised a preliminary objection contending that the application was incompetent, premature, an abuse of process, and that the Applicant lacked legal capacity since she held no grant of letters administration intestate. The Applicant invoked the inherent jurisdiction under Section 3A of the Civil Procedure Act. The court examined Order 24 Rules 1 and 3 of the Civil Procedure Rules and held that only a legal representative as at the time of the application can substitute a deceased party. In her Further Affidavit the Applicant conceded she was not so appointed when filing, annexing a Limited Grant of Letters of Administration Ad Litem issued on 22nd July, 2020 in Machakos Succession Cause No. 46 of 2020. The court, following Sarah Kobilo Chebii v David K. Chesang, held that the grant could not operate retrospectively, found the application incompetent, and struck it out with costs.

Key legal issues

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01

Legal capacity to substitute a deceased plaintiff

Holding

An applicant for substitution must be a legally appointed legal representative of the deceased as at the time of filing the application; a grant obtained after filing does not cure the defect

Reasoning

Order 24 Rule 3(1) of the Civil Procedure Rules requires the legal representative of the deceased plaintiff to be made a party. A legal representative under Section 2 of the Civil Procedure Act is one who in law represents the estate. The Applicant only obtained a Limited Grant Ad Litem on 22nd July, 2020, months after filing the application, and grants cannot apply retrospectively. The application was therefore incompetent and was struck out with costs.

p. 2

Legal principles established

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  • The person who can substitute a deceased party in a suit must be his/her legal representative as at the time of making the application for substitution

Court orders

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  1. 1.The Application dated 29th November, 2019 is struck out with costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 2
  • Civil Procedure RulesOrder 24 Rules 1 and 3(1), (2)

Cases cited (1)

  • Sarah Kobilo Chebii and Another vs. David K. Chesang
    (2019) eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 24 Rules 1 and 3(2) of the Civil Procedure Rules

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, "John Musyoka Musembi v Joseph Kyanya Kyengo; Priscilla Musyoka Musembi (Applicant) [2021] KEELC 4370 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4370/eng@2021-02-12

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