Tana Fish & Meat Processors Ltd v Irungu & 2 others; Kimani & Kimani (Sued as legal representatives of the Estate of Stanley Kimani Irungu) (Proposed Substitute); Kinyanoi (Sued as legal representative of the Estate of Stanley Kimani Irungu) (Applicant) (Environment and Land Case E015 of 2024) [2026] KEELC 445 (KLR)
The bottom line
#In Kenya, only someone with a court grant can step into a deceased person's shoes in a lawsuit — family ties alone aren't enough.
What this practically means
#Executive summary
#Key legal issues
#Capacity to be substituted for a deceased defendant
The applicant holding a limited grant ad litem, and supported by the deceased's widow and family, had the legal capacity to be substituted; the widow and son proposed by the plaintiff, holding no grant, did not.
Order 24 Rule 4(1) of the Civil Procedure Rules requires substitution of the legal representative of a deceased defendant. Section 2 of the Civil Procedure Act defines a legal representative as a person who in law represents the estate. The plaintiff's proposed substitutes had no grant and no citation had been filed to compel them to take out letters of administration. The applicant held a limited grant ad litem issued in Nakuru CM P&A Ad Litem Cause No. E231 of 2025 and enjoyed the family's support.
Fraud allegation against the grant ad litem
The plaintiff's allegation that the grant ad litem was obtained fraudulently was disregarded for lack of proof.
Counsel for the plaintiff asserted he could not trace the grant on the Nakuru CTS and claimed it was fraudulently obtained, but attached no documentary evidence. The court held that proof of fraud must exceed the balance of probabilities, and none was tendered from the Chief Magistrate's Court Nakuru or the police. The grant was also supported by the deceased's widow's affidavit. The fraud allegation therefore failed.
Costs
The plaintiff, having failed in its application, to bear costs; the successful applicant's costs to be in the cause.
Under section 27 of the Civil Procedure Act costs follow the event unless the court directs otherwise on reasonable grounds. Since the plaintiff's application failed and the applicant succeeded, the court found it fair and just that the plaintiff bear its own costs while the applicant's costs be in the cause.
Legal principles established
#- Only a person holding a grant of representation (including a limited grant ad litem) has capacity/locus standi to be substituted for or represent a deceased party's estate in litigation.
- Allegations of fraud must be proved to a standard above the balance of probabilities and unsupported fraud allegations will be disregarded.
- A party alleging that another lacks capacity to represent a deceased's estate bears the burden of proof under sections 107-109 of the Evidence Act.
Court orders
#- 1.The plaintiff's application dated 22nd May 2025 is dismissed with costs
- 2.The applicant's undated application filed on 12th August 2025 is allowed as prayed with costs in the cause
- 3.George Muiro Kinyanjui is substituted for the deceased 1st defendant who died on 9th April 2025
- 4.The plaintiff to file and serve an amended plaint reflecting the substitution within twenty-one (21) days
- 5.The defendants to file and serve amended statements of defence reflecting the substitution within fifteen (15) days after service
- Jurisdiction invoked
- Order 24 Rule 4(1) of the Civil Procedure Rules; Section 2 of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tana Fish & Meat Processors Ltd v Irungu & 2 others; Kimani & Kimani (Sued as legal representatives of the Estate of Stanley Kimani Irungu) (Proposed Substitute); Kinyanoi (Sued as legal representative of the Estate of Stanley Kimani Irungu) (Applicant) (Environment and Land Case E015 of 2024) [2026] KEELC 445 (KLR)", Case Analysis (2026). Not stated in judgment (ruling on two notices of motion within a suit over land parcel Kiine/Rukanga/1148). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/445/eng@2026-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.