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ELRCPartially AllowedNot stated in judgment· [2022] KEELRC 1010 (KLR)

Lydia Atieno Ogola & another (Administrators of the estate of the late Fredrick Otieno Adumbo) v Gogni Rajope Consruction Ltd & 2 others [2022] KEELRC 1010 (KLR)

Employment and Labour Relations Court
26 January 2022
763 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out pleadings filed in a co-administrator's name without her consent, confirming estate administrators must act together.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 29 March 2021 by Lydia Atieno Ogola, an applicant in a Cause before the Employment and Labour Relations Court at Kisumu, seeking the striking out of all pleadings filed by the firm of Onsongo & Co. Advocates in her name, with costs against that firm. She contended she had never given instructions, authority or consent for the firm to act for her. Becky Nyanchama Onyancha, a co-administrator with the applicant of the estate of Fredrick Otieno Adumbo, replied that she alone had instructed the firm to sue for compensation under the Work Injury Benefits Act after the applicant declined to consent to the proceedings; the firm filed a preliminary objection asserting the dispute lay within the Law of Succession Act and outside the Court's jurisdiction, while the 1st Respondent supported the application. The Court allowed the Motion. Relying on authority that co-administrators of an estate must act together, and on the co-administrator's own admission that the applicant had not consented, it held the proceedings had no legal legs to stand on without the applicant's consent or court leave. The preliminary objection was rejected as self-defeating, since denying jurisdiction over the Motion would deny jurisdiction over the Cause itself. The Court struck out the pleadings filed on 24 November 2020 and made no order on costs, noting the protagonists remain co-administrators, while observing the cause of action may be caught by limitation.

Key legal issues

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01

Whether pleadings filed on behalf of one co-administrator without her consent or authority should be struck out

Holding

Yes; the pleadings were struck out because the applicant never consented to or approved the instructions

Reasoning

The co-administrator admitted in her replying affidavit that the applicant had declined to consent to the institution of the proceedings. Case law establishes that co-administrators must act together. Without the applicant's consent or leave of the court, the proceedings lacked legal foundation and could not stand.

p. 2
02

Whether the preliminary objection on jurisdiction succeeded

Holding

No; the objection was self-defeating because if the Court lacked jurisdiction over the Motion it would also lack jurisdiction over the Cause

Reasoning

Counsel for the firm argued the dispute fell under the Law of Succession Act and the Probate and Administration Rules, outside the Court's jurisdiction. The Court held that accepting this argument would mean the Court had no jurisdiction over the Cause itself, rendering the objection self-defeating, and rejected it.

p. 2

Legal principles established

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  • Where there is more than one administrator of an estate, they are expected to act together and proceedings instituted without the consent of all administrators have no legal foundation
  • Proceedings commenced without the consent of a co-administrator and without leave of the appropriate court cannot stand

Court orders

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  1. 1.Striking out of the pleadings filed on 24 November 2020
  2. 2.No order on costs

Authorities

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Legislation

  • Law of Succession Actsections 47 and 73
  • Probate and Administration RulesRule 49
  • Work Injury Benefits Actnot specified

Cases cited (3)

  • Estate of Simon Ngugi (deceased)
    (2013) eKLR
  • In the Estate of Mohamed Makau (deceased)
    (2019) eKLR
  • R v Nairobi City Council & 3 Ors ex-parte Christine Wangari Gachege suing on behalf of the estate of Rahab Wanjiru Evans
    (2014) eKLR
Jurisdiction invoked
Not expressly stated; the Cause is before the Employment and Labour Relations Court concerning Work Injury Benefits Act compensation

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, "Lydia Atieno Ogola & another (Administrators of the estate of the late Fredrick Otieno Adumbo) v Gogni Rajope Consruction Ltd & 2 others [2022] KEELRC 1010 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1010/eng@2022-01-26

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