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)
The bottom line
#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
#Executive summary
#Key legal issues
#Abatement of the employment claim on the death of the Respondent
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
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.
Whether a Claimant appointed administrator of the deceased Respondent's estate can prosecute the Claim against that estate
He cannot; such dual representation violates the adversarial architecture of the E&LRC Rules and the administrator's fiduciary duty to the estate
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.
The proper procedural route after the death of an Employer
The Claimant should have moved under Part VIII of the Employment Act on insolvency, or sought the aid of the Public Trustee
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.
Legal principles established
#- 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
#- 1.The Claim is declined
- 2.No order on the costs
- 3.The file is closed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the E&LRC [Procedure] Rules, 2024 (delivered pursuant to Rule 68[5])
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.