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ELRCDismissedCause No. 164 of 2016 (formerly at Nakuru)· [2018] KEELRC 2575 (KLR)

Julius Kiprotich Kiptoo v Kerio Valley Development Authority [2018] KEELRC 2575 (KLR)

Employment and Labour Relations Court
25 September 2018
MMM. Mbaru
981 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that a widow holding a limited grant ad litem can continue a deceased employee's case against a state employer.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Eldoret (M. Mbaru J) determined a Notice of Preliminary Objection dated 2nd July 2018 filed by the respondent, Kerio Valley Development Authority, against the claimant, Mercy Nyambura Kiptoo. The underlying suit (Cause No. 164 of 2016, initially filed at Nakuru) was commenced by Julius Kiprotich Kiptoo, a surveyor engaged by the respondent on 1st April 1991 who retired on 5th June 2015, claiming unpaid gratuity. He died during the pendency of the suit. By a Notice of Motion dated 10th October 2017, supported by a Limited Grant of Letters of Administration ad litem issued by the High Court, Eldoret in Ad Litem Application No. 35 of 2017, the court on 3rd November 2017 allowed substitution of the deceased with Mercy Nyambura Kiptoo as legal representative. The respondent's preliminary objection contended that the claimant lacked capacity to sue because she was not party to the employment contract and had no documentation showing she was administrator of the estate. The claimant countered that she held an unopposed ad litem grant, that the objection cited no law, and that the respondent had filed no defence challenging the employment. The court held that the substitution issue had already been resolved by the subsisting ruling of 3rd November 2017, that the ad litem grant conferred capacity to prosecute proceedings under Section 54 of the Law of Succession Act, and dismissed the objection with costs to the claimant. Time was enlarged by 10 days for the respondent to file a defence, failing which the claimant may set the main claim down for hearing.

Key legal issues

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01

Capacity of a legal representative ad litem to sue in an employment claim

Holding

The claimant, as holder of a limited grant ad litem issued by the High Court, Eldoret, has capacity to substitute the deceased claimant and prosecute the claim; the subsisting ruling of 3rd November 2017 allowing substitution resolved the issue.

Reasoning

The claimant produced a Limited Grant of Letters of Administration ad litem issued by the High Court, Eldoret in Ad Litem Application No. 35 of 2017. Section 54 of the Law of Succession Act permits limiting grants, and the ad litem grant is designed for prosecuting or defending proceedings. The court had already allowed substitution by ruling delivered 3rd November 2017, which subsists and was not set aside. The respondent filed no response to the amended claim and no material challenging the grant.

p. 2
02

Validity of the preliminary objection

Holding

The objection lacked legal foundation and merit and was dismissed with costs.

Reasoning

A proper preliminary objection must rest on a point of law. The respondent did not rely on any law, filed no defence or material challenging the employment relationship or the grant, and did not apply to set aside the subsisting substitution orders. The objection on capacity therefore failed, and the court also enlarged time for the respondent to file a defence since pleadings had not closed.

p. 2

Legal principles established

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  • A holder of a limited grant of letters of administration ad litem has capacity to prosecute a claim on behalf of a deceased employee's estate
  • A preliminary objection not anchored on any law is not a proper preliminary objection

Court orders

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  1. 1.The preliminary objection dated 2nd July 2018 is dismissed with costs to the claimant
  2. 2.Time enlarged by 10 days to allow the respondent file its defence
  3. 3.If no defence is filed as directed, the claimant at liberty to move the court for a hearing date of the main claim

Authorities

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Legislation

  • Law of Succession ActSection 54
  • Law of Succession ActFifth Schedule, paragraphs 11-16 (Form 14)

Cases cited (1)

  • Republic versus Attorney General ex parte Isaiah Kipngetich Rotich
    ELRC JR No.16 of 2014
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims; substitution under Law of Succession Act, Section 54 (limited grant ad litem)

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, "Julius Kiprotich Kiptoo v Kerio Valley Development Authority [2018] KEELRC 2575 (KLR)", Case Analysis (2018). Cause No. 164 of 2016 (formerly at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2575/eng@2018-09-25

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