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ELRCDismissedNotice of Motion dated 21.1.2020 in ELRC Cause No. 1053 of 2015· [2021] KEELRC 2211 (KLR)

Kenya Engineering Workers Union v Napro Industries Limited [2021] KEELRC 2211 (KLR)

Employment and Labour Relations Court
5 February 2021
OMOnesmus N. Makau
539 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A court case filed on behalf of a deceased person without Letters of Administration is a nullity that later substitution cannot fix.

What this practically means

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Executive summary

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The Claimant union filed ELRC Cause No. 1053 of 2015 on 16 June 2015 on behalf of the late Boniface Mbithi Nyilu, who died in a road accident on 19 January 2014, without holding Letters of Administration for his estate. By a Notice of Motion dated 21 January 2020, supported by the affidavit of Hellen Nduku Mbithi Nyilu, the widow who had obtained a Limited Grant of Letters of Administration on 28 November 2019, the court was asked to substitute her, as administrator, as the party pursuing compensation against the deceased's employer, the Respondent. The Respondent opposed through Grounds of Opposition filed on 10 February 2020, contending that the suit was incompetent ab initio because it was instituted by a party without capacity or locus standi, and relied on precedents to that effect. Justice Onesmus N. Makau framed two issues: whether the application was incompetent, and whether it had merit. He found that the suit was incompetent ab initio for want of a Grant of Letters of Administration at filing, and that no valid suit existed for the widow to take over. Invoking the settled principle that a suit filed on behalf of a deceased person without Letters of Administration is a nullity, he dismissed the substitution application and ordered each party to bear its own costs. Judgment was delivered online pursuant to Covid-19 directives, with the parties waiving compliance with Rule 28(3) of the ELRC Procedure Rules. The practical implication is that the underlying claim for compensation cannot be salvaged by post-hoc substitution; a fresh suit by the duly appointed administrator may be the only route, subject to limitation considerations.

Key legal issues

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01

Whether an application to substitute an administrator of a deceased person can cure a suit filed without Letters of Administration

Holding

No. A suit filed on behalf of a deceased person by a party without a Grant of Letters of Administration is incompetent ab initio, and no substitution can breathe life into a suit that never validly existed

Reasoning

The court found as common ground that the deceased died on 19 January 2014 and the suit was filed on 16 June 2015 by the Claimant union without any Grant of Letters of Administration. The widow only obtained a Limited Grant on 28 November 2019. Relying on the settled principle that a suit brought for a deceased person without a Grant is incompetent, the court held the suit itself was incompetent, and consequently the substitution application had no foundation since it would only be taking over a void suit.

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02

Whether the substitution application dated 21.1.2020 was competent

Holding

It was incompetent because there was no competent suit for the proposed substitute to take over

Reasoning

Since the underlying cause was a nullity from filing, the widow's subsequent Limited Grant could not retrospectively validate it. The court rejected the submission that substitution would cure the defect and dismissed the Motion without an order as to costs.

p. 1

Legal principles established

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  • Any suit filed on behalf of a deceased person without first obtaining Letters of Administration is incompetent and cannot stand

Court orders

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  1. 1.The application to substitute Hellen Nduku Mbithi Nyilu as Claimant is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (original cause ELRC No. 1053 of 2015)

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, "Kenya Engineering Workers Union v Napro Industries Limited [2021] KEELRC 2211 (KLR)", Case Analysis (2021). Notice of Motion dated 21.1.2020 in ELRC Cause No. 1053 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2211/eng@2021-02-05

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