Hon. Attorney General (suing on behalf of the Public Trustee) v Plaintiff & Others
The bottom line
#A Meru court threw out an attempt to undo a deceased estate's defence, ruling only the Public Trustee — not family members — can act for the estate.
What this practically means
#Executive summary
#Key legal issues
#Capacity of the deponent and the 2nd–7th defendants to act for the public trustee
The application was incompetently filed; the deponent and the 2nd–7th defendants cannot speak for the public trustee without its authority, and the probate grant appointed the public trustee, not the family
The court noted earlier rulings that it lacks jurisdiction under the Law of Succession Act to appoint or replace an estate's representative. The limited grant of 23.3.2022 to the deponent conflicted with the grant of 6.12.2021 appointing the public trustee specifically for this suit. No affidavit or authority from the public trustee's office authorised the deponent or counsel for the 2nd–7th defendants to bring the application, and state counsel who filed the defence had not disowned it on oath.
Whether stay of proceedings or setting aside of proceedings was warranted
Dismissed - there were no exceptional circumstances or reasonable grounds; the court had already bent backwards to accommodate the estate
Following Global Tours & Travels and Kenya Wildlife Service v Mutembei, the court held that stay or setting aside interferes with access to justice and fair hearing and must rest on good reasons and sound legal principles. The public trustee had filed a defence raising triable issues, the family was uncooperative with Order 11 compliance, and counsel had prepared witness statements never signed or filed. The application was found to be a delaying tactic.
Legal principles established
#- The question of who is to represent the estate of a deceased party is beyond the jurisdiction of the trial court and lies with the probate court under the Law of Succession Act
- Stay of proceedings or setting aside of proceedings must be based on good reasons and sound legal principles because they interfere with the right of access to justice and fair hearing
- Until the public trustee formally disowns or seeks to withdraw or amend the pleadings filed on its behalf, the defendants and a beneficiary deponent cannot make the application on its behalf
Court orders
#- 1.The application dated 17.11.2023 is dismissed with costs to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the trial court under the Civil Procedure Act and Rules; the court held the question of estate representation lies with the probate court under the Law of Succession Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hon. Attorney General (suing on behalf of the Public Trustee) v Plaintiff & Others", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/938/eng@2024-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.