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ELRCAllowedCause E065 of 2023 (Notice of Motion dated 2nd October 2023)

Malinga v National Government Constituencies Development Fund Board (Employment and Labour Relations Cause 1212 of 2016) [2025] KEELRC 1084 (KLR)

Employment and Labour Relations Court
3 April 2025
2,616 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a mother can take over her deceased son's employment case, reviving a claim that had technically lapsed.

What this practically means

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Executive summary

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The Applicant, Loise Museo Malinga, mother of the deceased claimant, brought a Notice of Motion dated 2nd October 2023 seeking reinstatement of the cause and enlargement of time to allow her substitution for the deceased claimant, citing Order 24 Rules 3 and 7(2) of the Civil Procedure Rules, the Civil Procedure Act and enabling provisions. The claimant, her son, died on 14th February 2018; a limited grant of letters of administration was issued in May 2021, and an earlier substitution application dated 30th August 2021 was dismissed on 2nd June 2022 because the suit had abated. The applicant contended the claim survived the deceased and that the court has wide discretion to enlarge time to avoid a miscarriage of justice. The judgment record also contains extensive material from respondents opposing conservatory orders in a related petition concerning re-advertisement of the Kenya Airports Authority Managing Director position, raising jurisdiction, locus standi and prima facie case issues. The court confined itself to the substitution question, declining to examine the merits of the claim. It held that the claim survived the deceased and that his mother is a fit person to take up the claimant's presentation, and accordingly allowed reinstatement of the cause and substitution of the deceased claimant with the applicant to continue and prosecute the claim. Costs were awarded in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant, being a mother to the deceased claimant, can be substituted as a fit person to process the claim

Key legal issues

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01

Whether the deceased claimant's mother can be substituted to continue the claim

Holding

The court allowed reinstatement and substitution, holding that the claim survived the deceased and his mother is a fit person to continue it

Reasoning

The court examined the pleadings and found the prayers extended beyond matters of information to be supplied. The court has power to consider any part of the claim personal to the deceased. The claim survived the claimant's death and the mother is a fit person to take up the claimant's presentation.

p. 6
02

Whether the court can determine the merits of the claim at this stage

Holding

No - the court declined to assess the merit of the claim at the substitution stage

Reasoning

At the reinstatement/substitution stage the court only determines whether the applicant is a fit person to continue the claim, not the merit or otherwise of the claim as submitted by the respondent.

p. 5

Legal principles established

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  • A claim that survives the death of a claimant may be taken up by a fit personal representative, and the court may reinstate and allow substitution of an abated suit

Court orders

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  1. 1.Reinstatement of the cause
  2. 2.Enlargement of time to allow for substitution of the deceased claimant
  3. 3.Substitution of the deceased claimant with Loise Museo Malinga to continue and prosecute the claim
  4. 4.Costs in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162 of the Constitution; Section 12 of the Employment and Labour Relations Act; Article 159(d) of the Constitution

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I will therefore allow based on the pleadings and submissions the reinstatement of this cause and allow substitution of the deceased claimant with Loise Museo Malinga, the applicant to continue and prosecute the claim.
p. 6Final orders - reinstatement and substitution
Costs in the cause.
p. 6Costs order
At this point this Court cannot go into the merit or otherwise of the claim as has been submitted by the respondent.
p. 5Scope of enquiry on substitution applications

Issues in the judgment

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material

The notice of motion concerns reinstatement and substitution of a deceased claimant, but paragraphs 8-11 and much of the record (grounds of opposition, submissions) address a wholly different matter - a petition concerning the re-advertisement and recruitment of the Kenya Airports Authority Managing Director and conservatory orders

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, "Malinga v National Government Constituencies Development Fund Board (Employment and Labour Relations Cause 1212 of 2016) [2025] KEELRC 1084 (KLR)", Case Analysis (2025). Cause E065 of 2023 (Notice of Motion dated 2nd October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1084/eng@2025-04-03

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