REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 158 OF 2014 CHARI MWADIME & RACHAEL NYASI MAKOKO KIMBIO (Both suing as Personal representatives of the estate of JANET M. MWADIME……………………………….…….PLAINTIFFS VERSUS (The administrators of the estate of CALEB NYENDE…………………………………...…..1ST DEFENDANT JUBILEE INSURANCE CO.LTD…………..……...........2ND DEFENDANT WILLIAM MBUKULI NYENDE (Sued as the personal Representative of the estate of CALEB NYENDE...........DEFENDANT COURT RULING The plaintiff’s application dated 24th March 2015 seeks for substitution of the 1st defendant Caleb Nyende with William Mbukuli Nyende who is said to be the personal representative of the estate of the deceased Caleb Nyende. It also seeks for striking out of the 2 nd defendant Jubilee Insurance Company Limited from these proceedings. In addition, the plaintiffs seek for leave to serve the new proposed defendant by way of advertisement in the newspaper. The application is supported by the joint affidavit of the plaintiffs herein and grounds on the face of the application. The said application is not opposed by the 2nd defendant save for costs. I have carefully considered the application by the plaintiffs, the grounds and depositions as well as submissions by counsel for the applicants Miss Irungu. For an application to substitute a deceased party, there must be evidence of that party being dead, and also evidence that the person who is sought to be substituted is a legal/personal representative of the estate of the deceased party. Capacity to sue and be sued is a legal franchise, not based on the existing relationship of affinity or consaquinity. In addition, Order 24 of the Civil Procedure Rules is clear that where a party to proceedings dies and
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there is no application to substitute that party within one year of the date of death, the suit abates, notwithstanding the provisions for revival. In this case it is alleged that the 1 st defendant is dead and that his father, the proposed substitute took out letters of administration and was paid his son’s benefits. However, there is no deposition or evidence as to when the said defendant died. No death certificate has been exhibited and neither has the plaintiffs annexed any grant of letters of administration whether limited or otherwise, giving the proposed substitute capacity to be substituted in the place of the deceased defendant. This court cannot issue orders in darkness. In the premise, the application for substitution of the 1 st defendant cannot be granted and I decline the same and strike it out. I however grant leave to the plaintiff to withdraw suit against the 2 nd defendant Jubilee Insurance Company Limited and order the name thereof to be struck out. The 2nd defendant shall have costs of the withdrawn suit. Orders accordingly. Dated, signed and delivered in open court this 1st October 2015 R.E. ABURILI JUDGE
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