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ELRCDismissedNot stated in judgment· [2025] KEELRC 2955 (KLR)

Kamau v Kamau (Acting as the administrator of the Esate of Wainaina Kuria Ngachui t/a Andu Driving School) (Cause 180 of 2018) [2025] KEELRC 2955 (KLR)

Employment and Labour Relations Court
30 October 2025
1,790 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employee's claim against his late employer collapsed because he waited over a year to substitute the estate and then tried to sue it while administering it.

What this practically means

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Executive summary

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The Claimant sued the Respondent, proprietor of Mwenda Andu Driving School, claiming he was employed as a Driving School Instructor in 1989 and unfairly terminated in 2017 after falling sick, after 28 years of service. He sought 12 months' salary (Kshs. 278,301.60), terminal benefits (Kshs. 895,664), a certificate of service and costs. The Respondent denied employing him in 1989, asserting casual employment from 1999, an absence from 2001 to 2010, sickness from 2014, and ex gratia payments on humanitarian grounds. Before hearing, the Respondent died on 3rd January 2021. No letters of administration were issued for over three years, and no substitution orders could be traced in the Court record. The Claimant then himself took out letters of administration over the Respondent's estate in Naivasha CM Succession Cause E076 of 2024, sought substitution, and ultimately gave evidence both as Claimant and as administrator of the deceased Respondent. The Court held the Claim had abated under Order 24 Rules 3 and 4 of the Civil Procedure Rules, which the E&LRC applies as default Rules, since substitution was not sought within one year and no extension of time was granted. The Court further held that a Claimant cannot legally represent the deceased Respondent against himself, as this violates the adversarial architecture of the E&LRC [Procedure] Rules, 2024 and an administrator's duty to act in the estate's interest. The proper route was the insolvency procedure under Part VIII of the Employment Act, with claims payable through the Cabinet Secretary from the NSSF, or recourse to the Public Trustee. The Claim was declined, with no order on costs, and the file closed.

Key legal issues

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01

Abatement of the employment claim on the death of the Respondent

Holding

The Claim abated because substitution was sought only over three years after the Respondent's death, with no extension of time granted by the Court

Reasoning

Order 24 Rule 4 of the Civil Procedure Rules applies where a Respondent dies, and the E&LRC has adopted Order 24 Rule 3 as a default Rule for employment claims. The Court of Appeal in Said Sweilem Gheithan Saanum elaborated that an application for substitution must be made within one year of death or within such extended time as the Court allows; otherwise the suit abates of its own force. Over one year lapsed here, no extension was granted, and no orders of substitution could be traced in the record.

p. 3
02

Whether a Claimant appointed administrator of the deceased Respondent's estate can prosecute the Claim against that estate

Holding

He cannot; such dual representation violates the adversarial architecture of the E&LRC Rules and the administrator's fiduciary duty to the estate

Reasoning

The role of an administrator under the Law of Succession Act, Cap 160 is to act in the interest of the estate, not against it. Employment disputes under the E&LRC [Procedure] Rules, 2024 are adversarial, with Claimant and Respondent as polar opposites. The Claimant, having taken out letters of administration in Naivasha CM Succession Cause E076 of 2024, could not faithfully discharge his duty to the estate while simultaneously seeking compensation and terminal benefits from it.

p. 3
03

The proper procedural route after the death of an Employer

Holding

The Claimant should have moved under Part VIII of the Employment Act on insolvency, or sought the aid of the Public Trustee

Reasoning

Section 67[a][ii] of the Employment Act provides that where an Employer has died, his estate is administered in accordance with the Law of Succession Act. Section 66 allows an Employee to apply to the Cabinet Secretary, who may pay the debt out of the National Social Security Fund. Alternatively, where beneficiaries decline representation, Section 6 of the Public Trustee Act allows a person with a legitimate interest to request the Public Trustee to act.

p. 4

Legal principles established

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  • A suit abates as a matter of course where no application for substitution of a deceased party is made within one year, or within such extended time as the Court allows
  • The E&LRC has adopted Order 24 Rule 3 of the Civil Procedure Rules as a default Rule on abatement of employment claims
  • An administrator must act in the interest of the estate, not against it, and a claimant cannot litigate against an estate he administers under the adversarial procedural architecture of the E&LRC Rules
  • Where an Employer dies, the Employee's route is the insolvency procedure under Part VIII of the Employment Act, with payment out of the National Social Security Fund upon the Cabinet Secretary's satisfaction

Court orders

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  1. 1.The Claim is declined
  2. 2.No order on the costs
  3. 3.The file is closed

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 3; Order 24 Rule 4
  • E&LRC [Procedure] Rules, 2024Rule 68[5]
  • Law of Succession Act, Cap 160General provisions on administration of estates
  • Employment ActSection 2[d]; Section 24; Part VIII; Sections 66, 67[a][ii], 68, 69
  • Public Trustee Act, Cap 168Section 6

Cases cited (3)

  • Julius Maina Kabiru v. Kabiru Kanga'ara & Thomas Irungu Kigoi
    [2022] e-KLR
  • Said Sweilem Gheithan Saanum v. Commissioner of Lands [being sued through the Attorney-General] & 5 Others
    [2015] e-KLR
  • Gachuhi Muthanji v. Mary Wambui Njuguna
    [2014] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the E&LRC [Procedure] Rules, 2024 (delivered pursuant to Rule 68[5])

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, "Kamau v Kamau (Acting as the administrator of the Esate of Wainaina Kuria Ngachui t/a Andu Driving School) (Cause 180 of 2018) [2025] KEELRC 2955 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2955/eng@2025-10-30

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