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MagistrateStruck OutNot stated in judgment· [2025] KEMC 33 (KLR)

Mutinda (Suing as the legal representative of the Estate of Felicicia Wanjiru - Deceased) v Karani & another; Attorney General (Third party) (Civil Case 4 of 2017) [2025] KEMC 33 (KLR)

Magistrates' Court at Nakuru
11 March 2025
ALALOYCE-PETER-NDEGE
586 words in judgment
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The bottom line

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A Kenyan court struck out defendants' application because one applicant was deceased and had never been replaced on the court record.

What this practically means

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Executive summary

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The Defendants/Applicants, defendants in a civil suit arising from a road traffic accident, applied under Article 50 of the Constitution, sections 1A, 1B and 3A of the Civil Procedure Act and Order 8 rule 3 of the Civil Procedure Rules for leave to file an intended list of documents after close of pleadings, with costs in the cause. The document sought to be introduced was a judgment in a sister file, Nakuru Civil Suit No. 1286 of 2018 (Erick Charkes Mutero & Another v Mary Wanjiku Karani, Hashi Hauliers Limited & The Attorney General), in which the Attorney General as 3rd Party was held 100% liable and the suit against the defendants dismissed. The Applicants explained that their only witness, the 1st Defendant, who was the driver at the material time, had died and the family was unwilling to substitute her. The Plaintifi/Respondent opposed via a Replying Affidavit. The court raised a competency issue sua sponte: the 1st Defendant/Applicant is deceased, a fact not contested. Holding that a deceased person cannot legally participate in proceedings and that any such step is a nullity, the Magistrate found the application, being jointly filed by a deceased applicant, incompetent and untenable. The application was struck out with costs to the Plaintifi/Respondent. The merits of the request for leave to file further documents were never reached. On delivery of the ruling, counsel sought and obtained leave to appeal within 30 days, and a mention date was set for 26/08/2025.

Key legal issues

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Competency of an application jointly filed by a deceased defendant

Holding

The application is a nullity and incompetent because the 1st Defendant, a joint applicant, is deceased and had not been substituted

Reasoning

The court found as fact that the 1st Defendant was deceased, a fact not opposed by the Respondent. It held that a dead party cannot legally participate in proceedings and any such step is a nullity liable to be struck out. Because the application was jointly filed by the deceased applicant, the court struck it out without reaching the merits of the request for leave to file further documents.

p. 2

Legal principles established

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  • A deceased person cannot legally participate in court proceedings; an application filed by or on behalf of a deceased party without substitution is a nullity

Court orders

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  1. 1.The Application filed jointly by a deceased applicant is struck out with costs to the Plaintifi/Respondent
  2. 2.Leave to appeal within 30 days granted
  3. 3.Mention on 26/08/2025

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure RulesOrder 8 rule 3
Jurisdiction invoked
Article 50 of the Constitution; sections 1A, 1B and 3A of the Civil Procedure Act; Order 8 rule 3 of the Civil Procedure Rules

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, "Mutinda (Suing as the legal representative of the Estate of Felicicia Wanjiru - Deceased) v Karani & another; Attorney General (Third party) (Civil Case 4 of 2017) [2025] KEMC 33 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/33/eng@2025-03-11

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