Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnvironment & Land Case 16 of 2020· [2022] KEELC 13601 (KLR)

Maingi v Dee Properties Limited & 4 others

Environment and Land Court
12 October 2022
ANA. Nyukuri
897 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

When a defendant in a Kenyan land case dies, the court can swap in their estate's legal representatives so the lawsuit continues against the property.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Machakos (A. Nyukuri, J) on a Notice of Motion dated 17th December 2021 brought by the Plaintiff, Susan Ndunge Maingi, under Order 24 Rule 4 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The Plaintiff sought substitution of the 2nd Defendant, Maingi Mukeka Tuto, who died on 20th September 2021, with the legal representatives of his estate - Joseph Musyimi Makato, Nzomo Makato and Hellen Ndinda Makato. The application was supported by an affidavit sworn by the Plaintiff's counsel, Mr Wambua Kituku, attaching a death certificate and a grant of letters of administration ad litem issued in Machakos Chief Magistrates' Court Probate and Administration Cause Miscellaneous No. E051 of 2021, limited to filing and prosecuting several suits including ELC No. 16 of 2020. The application was not opposed. The court framed a single issue: whether the orders sought ought to be granted. Applying Order 24 Rule 4, the court held that where a defendant dies and the cause of action survives, the court has power to join the legal representative of the estate before proceeding with the suit. Relying on the definition of 'legal representative' in Section 2 of the Civil Procedure Act and the annexed grant ad litem, the court found the three proposed administrators had the requisite capacity to be joined. The application was allowed in full: the deceased 2nd Defendant was substituted with the three legal representatives, who were granted 14 days to file and serve an amended defence and any other documents, with costs of the application in the cause.

Key legal issues

#
01

Substitution of a deceased defendant with legal representatives of the estate

Holding

The application under Order 24 Rule 4 was merited; the grant of letters of administration ad litem conferred capacity on the proposed legal representatives to be joined in place of the deceased 2nd Defendant.

Reasoning

The court applied Order 24 Rule 4, which empowers the court to cause the legal representative of a deceased defendant to be made a party where the cause of action survives. The death certificate and the grant ad litem issued in Machakos Chief Magistrate's Court Miscellaneous No. E051 of 2021 established both the death and the appointment of the three legal representatives, giving them requisite capacity to be joined.

Legal principles established

#
  • Where one of the Defendants dies and the cause of action survives, the court has power to join the legal representative of the estate before proceeding with the suit.

Court orders

#
  1. 1.The deceased 2nd Defendant be and is hereby substituted with the legal representatives of his estate namely Joseph Musyimi Makato, Nzomo Makato and Hellen Ndinda Makato.
  2. 2.The substituted Defendants are granted leave to file and serve their amended defence and any other documents they deem fit within 14 days of this ruling.
  3. 3.The costs of this application shall be in the cause.

Authorities

#

Legislation

  • Civil Procedure RulesOrder 24 Rule 4
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure ActSection 2
Jurisdiction invoked
Order 24 Rule 4 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Maingi v Dee Properties Limited & 4 others", Case Analysis (2022). Environment & Land Case 16 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13601/eng@2022-10-12

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