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ELCAllowedEnvironment & Land Case E20 of 2021· [2022] KEELC 13295 (KLR)

Wanguhu & Wanguhu (Suing as administrators for and on behalf of the Estate of Fridah Wairimu Wanguhu) v Wangui

Environment and Land Court
6 October 2022
LOL. A. Omollo
2,483 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a deceased plaintiff's estate to continue a land case by substituting new administrators, showing death does not end a lawsuit.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (L. A. Omollo, J) on a notice of motion dated March 10, 2022 brought by the plaintiff/applicant under Order 24 rules 1 and 2, Order 31 rules 1 and 2 and Order 51 rule 1 of the Civil Procedure Rules, seeking substitution of the deceased plaintiff Wilfred Manyara Wanguhu with Anthony Michael Kinuthia and Tony Kiarie Kaime. The plaintiffs, administrators of the estate of Fridah Wairimu Wanguhu, had sued the defendant seeking an injunction and orders reverting land reference number 6295/1/12 to the estate. Wilfred Manyara Wanguhu died on November 4, 2021, after an application in Nakuru Succession Cause No. 768 of 2012 had removed him as administrator; a rectified grant issued to Alex Mwaura Wanguhu, Antony Michael Kinuthia and Tony Kiarie Kaime on November 8, 2021. The defendant opposed, arguing the suit was defective for want of the deceased's initial consent, that it violated section 79 of the Law of Succession Act, and that affidavits of Victor Wanguhu and Edward Githomi were suspect as to date and circumstances of swearing. Victor Wanguhu admitted the date was erroneous but confirmed his signature. The court framed a single issue: whether the substitution should be allowed. Applying Order 24 rule 3(1), and finding no compelling opposition, the court allowed the application, substituting the two new administrators as plaintiffs, with costs of the application abiding the outcome of the main suit.

Key legal issues

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Whether substitution of a deceased plaintiff by the new administrators of the estate should be allowed

Holding

Substitution allowed; the deceased plaintiff had been removed as administrator and replaced by the proposed substitutes under a rectified grant, and no compelling reason opposed the substitution

Reasoning

The court applied Order 24 rule 3(1) of the Civil Procedure Rules. It found undisputed that Wilfred Manyara Wanguhu died on November 4, 2021, and that before his death an application in Nakuru Succession Cause No. 768 of 2012 had removed him as administrator, with a rectified grant issued to Alex Mwaura Wanguhu, Antony Michael Kinuthia and Tony Kiarie Kaime. The defendant's objections (lack of initial consent, suspect affidavits) were not compelling; the contested affidavit was immaterial as it was not under consideration.

p. 6

Legal principles established

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  • Where a plaintiff dies and the cause of action survives, the court shall on application cause the legal representative of the deceased plaintiff to be made a party and proceed with the suit

Court orders

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  1. 1.The name of Wilfred Manyara Wanguhu be and is hereby substituted with Anthony Michael Kinuthia and Tony Kiarie Kaime as plaintiffs in this suit
  2. 2.The costs of this application shall abide the outcome of the main suit
Jurisdiction invoked
Order 24 rule 3(1), Order 31 rules 1 & 2, Order 51 rule 1 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, "Wanguhu & Wanguhu (Suing as administrators for and on behalf of the Estate of Fridah Wairimu Wanguhu) v Wangui", Case Analysis (2022). Environment & Land Case E20 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13295/eng@2022-10-06

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