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ELCDismissed· [2024] KEELC 938 (KLR)

Hon. Attorney General (suing on behalf of the Public Trustee) v Plaintiff & Others

not stated in the judgment (delivered at Meru)
21 February 2024
2,082 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicant, the Hon. Attorney General acting for the public trustee (1st defendant), sought leave to withdraw or strike out the memorandum of appearance and defence filed on behalf of the public trustee, a stay of proceedings, an order compelling the public trustee to enter appearance and file a defence within seven days, leave to amend pleadings, and setting aside of all proceedings so the suit could start de novo. The application was supported by an affidavit of Asenath Kaimura, a granddaughter of the deceased 1st defendant and a beneficiary of the estate, who contended that the defence filed did not represent the estate's interests. The plaintiff opposed, arguing non-disclosure of material facts, lack of capacity of the deponent, and that the application was a delaying tactic in a suit already set down for hearing. The court reviewed the procedural history: the original 1st defendant died on 3.3.2021; substitution failed; the public trustee was appointed by an order of 12.10.2021; and a previous application by the same deponent was dismissed by a ruling of 5.10.2022 in which the court held it lacked jurisdiction to determine who should represent the deceased's estate. Holding that the question of estate representation lies beyond its jurisdiction and that neither the deponent nor the 2nd–7th defendants had authority from the public trustee's office, and finding no exceptional circumstances for a stay or trial de novo, the court dismissed the application as incompetent and unmerited, with costs to the plaintiff.

Key legal issues

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01

Capacity of the deponent and the 2nd–7th defendants to act for the public trustee

Holding

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

Reasoning

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.

p. 3
02

Whether stay of proceedings or setting aside of proceedings was warranted

Holding

Dismissed - there were no exceptional circumstances or reasonable grounds; the court had already bent backwards to accommodate the estate

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 17.11.2023 is dismissed with costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 3
  • Civil Procedure RulesOrder 7
  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 3 Rule 2
  • Law of Succession Actnot specified

Cases cited (2)

  • Global Tours & Travels Limited
    Nairobi H.C Winding up Cause No. 43 of 2000
  • Kenya Wildlife Service vs James Mutembei
    (2019) eKLR
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

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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, "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.