Wanguhu & Wanguhu (Suing as administrators for and on behalf of the Estate of Fridah Wairimu Wanguhu) v Wangui

Factual Background. 4. The plaintis commenced this suit vide a plaint dated February 17, 2021 where the plaintis pray for judgement against the defendant/respondent for: a. An injunction restraining the defendant by herself, her servants, agents or any other person claiming through her from selling or oering for sale, leasing out, or in any way alienating the suit property known as land reference number 6295/1/12. b. An order for the defendant to transfer the suit property known as land reference number 6295/1/12 back to the estate of the late Frida Wairimu Wanguhu. c. In the alternative the registrar of government lands be ordered to cancel the entries transferring the suit property to the defendant and the same to revert back to the estate of the late Frida Wairimu Wanguhu. d. Costs e. Any other relief the court deems t to grant. 5. The defendant entered appearance and led her statement of defence dated October 28, 2021 on November 2, 2021 where she denied the allegations in the plaint and sought that the plainti’s suit be dismissed with costs. 6. The matter came up for hearing on March 8, 2022 when counsel for the plaintis informed the court that one of the plaintis Wilfred Manyara Wanguhu is deceased. 7. The removal of Wilfred Manyara Wanguhu as an administrator of the estate of Fridah Wairimu Wahungu and his subsequent demise necessitated the ling of this application. The Plainti/applicant’s Contention. 8. The plainti/applicant contends that he is an administrator of the estate of Fridah Wairimu Wanguhu and that he had led the present suit with his brother Wilfred Manyara Wanguhu now deceased. 9. The plainti/applicant further contends that it is his understanding that as administrators they are obligated to act in the best interest of the estate as they could be called to render accounts. 10. The plainti/applicant also contends that after the suit was led he was shocked to learn that his brother Wilfred Manyara Wanguhu had teamed up with Ruth Mary Wangui who is the defendant herein to sell the suit property. 11. It is his contention that that the family held a meeting where it resolved that it was in the best interest of the estate that Wilfred Manyara Wanguhu be removed as an administrator and he be replaced with Antony Michael Kinuthia. 12. It was also his contention that it was further resolved that Tony Kiarie Kaime would replace his father Peter David Kaime who was also one of the administrators and had passed away in October, 2020. 13. The plainti/applicant contends that the application dated June 21, 2021 was led in order to eect the changes and that he was informed by his advocates on record that the application was duly served upon Wilfred Manyara Wanguhu. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13295/eng@2022-10-06 2

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14. The plainti/applicant further contends that upon service, wilfred chose not to oppose the application to remove him as an administrator and unfortunately passed away on November 4, 2021 after the matter had been set for hearing on November 8, 2021. 15. He also contends that the application was heard by Honorable Lady Justice Matheka and orders granted on November 8, 2021. 16. The plainti/Applicant Further contends that Wilfred Manyara Wanguhu having passed away and in view of the fact that he has been substituted as an administrator in the estate of Fridah Wanguhu, it is not possible to have him continue as a plainti in this matter. 17. The plainti/applicant contends that they met as a family and agreed that they should move together as one in order to safeguard the estate from the danger posed by those who are intent on disposing it thereby disinheriting all other beneciaries. 18. The plainti/applicant further contends that it is against this background that he was shocked to hear that counsel for the late Wilfred Manyara Wanguhu state in court on March 8, 2022 that he had obtained a letter from the chief to petition for a grant of letters of administration. 19. The plainti/applicant also contends that the court should take note of the fact that the widow of the late Wilfred Manyara Wanguhu had also recorded a statement in this matter distancing herself from the actions of her late husband and is a witness for the plaintis begging the question on whose behalf counsel is acting and, on whose instructions, he obtained the said letter. 20. He ends his deposition by praying that the application to substitute Wilfred Manyara as one of the plaintis with Anthony Michael Kinuthia and Tony Kiarie Kaime be allowed. Defendant/Respondent’s Response. 21. The defendant/respondent led a replying adavit sworn on March 16, 2022 and led on March 21, 2022. 22. She contends that this application is most unfortunate and a pure abuse of the due process of the law and should be dismissed forthwith. 23. She further contends that the application is a non-starter for it is premised on an incurably defective suit and that from the onset when this suit was led no consent from her deceased brother Wilfred Manyara was obtained and that is why he disputed the same. 24. She also contends that the court record does not in any way bear or have a consent by the said Wilfred Manyara and as such the application for substitution cannot stand nor has it crystallized by virtue of lack of initial consent prior to ling. 25. The defendant/respondent contends that she has been advised by her advocates on record that the suit expressly violates the provisions of section 79 of the Law of Succession Act and a preliminary point of law was raised and a notice issued as per paragraph 4 and 15 of the statement of defence. 26. The defendant/respondent further contends that she is surprised to see the adavit of Victor Wanguhu her nephew having sworn an adavit at Nakuru on the March 8, 2021 yet during that time the father was still alive. 27. The defendant/respondent also contends that the alleged adavit of Edward Githomi allegedly sworn on the March 8, 2021 is equally strange to her. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13295/eng@2022-10-06 3

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28. She contends that the two adavits are suspect and purely aimed at misleading the court and as their aunty she believes that the said Victor and Edward did not swear the same at a commissioner for oaths at Nakuru for they are based in the USA and Bungoma respectively. 29. She further contends that due to the foregoing she appeals to the court to take the pleadings by the applicant with a pinch of salt and that Victor had indicated to her that from the date he buried his father Wilfred he has never stepped a foot in the country and so she wonders who swore the adavit on his behalf. 30. She ends her deposition by stating that it is clear that the said application must fail. 31. Upon service of the replying adavit of the defendant/respondent, Victor Manyara Wanguhu led a further adavit sworn on April 29, 2022 and led on May 6, 2022. 32. He contends that upon the demise of his father he travelled to Kenya to attend the funeral in November, 2021 and that when he was in Kenya he signed the adavit which is being contested by his aunt Ruth Mary Wangui who is the defendant. 33. He contended that the date which was inserted in the adavit may be erroneous but he conrms that the signature is his and that he signed the adavit in November, 2021 when he was in Kenya. Issues For Determination. 34. The plainti/applicant led his submissions dated on May 6, 2022 while the defendant/respondent did not le any submissions. 35. The plainti/applicant in his submissions identied one issue for determination; Whether The Court Should Grant Orders For Substitution. 36. The plainti/applicant submitted that the family division of the court had issued grants of administration to the plaintis herein to administer the estate of the late Fridah Wairimu Wanguhu but one of the administrators Wilfred Manyara Wanguhu passed on November 4, 2021. 37. The plainti/applicant further submitted that even before Wilfred Manyara Wanguhu had died an application had been brought to court to substitute him as one of the administrators. 38. The plainti/applicant also submitted that upon hearing of the application in Nakuru succession cause No 768 of 2012 the court on November 8, 2021 issued letters of grant of administration to Alex Mwaura Wanguhu, Antony Michael Kinuthia and Tony Kiarie Kaime. The plainti/applicant relied on the case of re Estate of Tirus Kamanda (deceased) [2018] eKLR. 39. The plainti/applicant pointed out that the defendant/respondent had indicated that no consent was sought from the late Wilfred Manyara to have the suit instituted and submitted that the court would not issue grant of letters of administration where a beneciary of the estate of the deceased is not agreeable. 40. The plainti/applicant further submits that the deceased Wilfred Manyara never complained to court that he wished not to be an administrator of the estate of the late Fridah Wairimu Wanguhu. 41. The plainti/applicant also submits that the defendant/respondent in her replying adavit indicated that Victor Manyara Wanguhu swore the adavit when the father was still alive. Plainti/applicant went on to submit that in the further adavit sworn by Victor Manyara, he stated that he swore the https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13295/eng@2022-10-06 4

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adavit when he travelled back to Kenya in November, 2021 to attend the burial of his father admitting that though the adavit might have a wrong date, the signature on it is his. 42. The plainti/applicant concluded his submissions by stating that the respondent has not shown the court how she will be prejudiced if the honorable court proceeds and issues the substitution orders sought. 43. The plainti/applicant states that it is in the interest of justice that the court allows Wilfred Manyara Wanguhu to be substituted with Anthony Kinuthia and Tony Kiarie Kaime. 44. It is my considered view that the only issue that arises for determination is; Whether Wilfred Manyara Wanguhu should be substituted with Anthony Michael Kinuthia and Tony Kiarie Kaime as plaintis in this suit. Analysis And Determination. 45. I have taken into consideration the application, the supporting adavit, the further adavit and the submissions led by the plainti/applicant. 46. The law relating to substitution is found in order 24 rule 3(1) of the Civil Procedure Rules. It provides as follows: Where one of two or more plaintis dies and the cause of action does not survive or continue to the surviving plainti or plaintis alone, or a sole plainti or sole surviving plainti dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plainti to be made a party and shall proceed with the suit. 47. In the present application, the plainti/applicant is seeking for Wilfred Manyara Wanguhu (deceased) to be substituted with Antony Michael Kinuthia and Tony Kiarie Kaime. 48. This is grounded on the fact that Wilfred Manyara Wanguhu’s name was removed as one of the administrators of the estate of the late Fridah Wairimu Wanguhu. 49. The defendant/respondent in response to the application alleges that when the suit was led, no consent from Wilfred Manyara was obtained. 50. The defendant/respondent further alleges that the adavit said to be sworn by Victor Wanguhu in Nakuru on March 8, 2021 was done when the father was still alive and that he is based in the USA while the adavit sworn by Edward Githomi on March 8, 2021 is strange to her as he is based in Bungoma. 51. In response to the allegations raised by the defendant/respondent in her replying adavit, Victor Wanguhu in his further adavit stated that upon the demise of his father, he travelled to Kenya in November, 2021 when he signed the adavit contested by the defendant/respondent. 52. He also admitted that the date inserted in the adavit was erroneous but conrmed that the signature belonged to him. 53. Upon perusal of the court record, the adavit sworn by Victor Wanguhu on March 8, 2021 that is contested by the defendant/respondent was led in response to the adavit sworn by Wilfred Manyara Wanguhu (deceased). The same is not under consideration and hence immaterial. 54. From the material placed on record, it is not disputed that one of the plaintis Wilfred Manyara Wanguhu passed away on November 4, 2021. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13295/eng@2022-10-06 5

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55. It is also not disputed that prior to his death, an application had been led in Nakuru succession case number 768 of 2012 to have his name removed as one of the administrators of the estate of Fridah Wairimu Wanguhu which application was allowed on November 8, 2022. 56. Annexed to the plainti/applicant’s application is a copy of the rectied grant of letters of administration intestate of the estate of the late Fridah Wairimu Wanguhu which was granted to Alex Mwaura Wanguhu the plainti/applicant herein together with Antony Michael Kinuthia and Tony Kiarie Kaime. Disposition. 57. Based on the foregoing and owing to the fact that no compelling reasons have been advanced by the defendant/respondent in opposition to the application for substitution, the application dated March 10, 2022 is allowed in the following terms; a. The name of Wilfred Manyara Wanguhu be and is hereby substituted with Anthony Michael Kinuthia and Tony Kiarie Kaime as plaintis in this suit. b. The costs of this application shall abide the outcome of the main suit DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 6TH DAY OF OCTOBER, 2022. L. A. OMOLLO JUDGE In the presence of: Mr. Osiemo for the Plainti/Applicant. Mr. Wambeyi for the Respondent. Court Assistant; Miss Monica Wanjohi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13295/eng@2022-10-06 6

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