Case ID:168592

Stephen Mbuthia Kigotho v Richard Gathinieri Chongo & another; George Gaitho Chongo (Applicant) [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 161 of 2018

Parties:

Stephen Mbuthia Kigotho v Richard Gathinieri Chongo & James Wakaba Chongo; George Gaitho Chongo (Applicant)

Date Delivered:

03 Dec 2020

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Ruling

Judge(s):

Lucy Nyambura Gacheru

Citation:

Stephen Mbuthia Kigotho v Richard Gathinieri Chongo & another; George Gaitho Chongo (Applicant) [2020] eKLR

Advocates:

Mr. Kariuki for Plaintiff/Respondent

Mr. Kimani Charage for Defendant/Applicant

Court Division:

Environment and Land

County:

Kiambu

Advocates:

Mr. Kariuki for Plaintiff/Respondent

Mr. Kimani Charage for Defendant/Applicant

History Advocates:

Both Parties Represented

Case Outcome:

Notice of motion dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO.161 OF 2018

STEPHEN MBUTHIA KIGOTHO...............................................PLAINTIFF

VERSUS

RICHARD GATHINIERI CHONGO...............................1

ST

DEFENDANT

JAMES WAKABA CHONGO..........................................2

ND

DEFENDANT

AND

GEORGE GAITHO CHONGO..............................................APPLICANT

RULING

The matter for determination is the Notice of Motion Application dated

28

th

January 2020

by the Applicant seeking for orders that;

1. That the 1

st

defendant herein Richard Gathinieri Chongo be substituted with George Gaitho Chongo.

2. That the costs of this Application be in the cause.

The Application is premised on the grounds that the 1

st

Defendant is deceased having passed away in

June 2019

. That the intended 1

st

Defendant/Applicant is the brother of the 1

st

and 2

nd

Defendants and therefore, in the interest of Justice, substitution should be done to ensure completion of this matter.

In his supporting Affidavit

George Gaitho Chongo,

averred that he is the brother of the 1

st

and 2

nd

Defendants. He averred that the dispute in this matter revolves over

L.R Ndumberi/ Ndumberi/134

and T.91

which are registered under their father’s name

Chongo Guanga.

That before the finalization of the suit, the 1

st

Defendant began ailing and passed away in

June 2019

and consequently the family decided that he be substituted in his place.

The Application is opposed and the plaintiff filed grounds of opposition dated

10

th

February 2020,

and opposed the Application on the grounds that the Application is in collision with the provisions of

Section 81 of the Law of Succession Act

. That the Estate of the late Daniel

Chongo Guanga

alias

Chongo Gaitho

is represented by virtue of

section 81

of the Law of Succession Act. Further that the Applicant has failed to provide evidence that Richard

Gathinieri Chongo,

passed away as claimed. That the Applicant has concealed material particulars in relation to

Richard Gathinieri Chongo,

including the beneficiaries of his estate and there has been no evidence that there was consensus in appointing the Applicant to substitute the 1

st

Defendant.

The Applicant filed a further Affidavit sworn on

27

th

October 2020,

and reiterated the contents of his supporting Affidavit and attached a copy of the 1

st

Defendant’s

Death Certificate.

The Application was canvassed by way of written submissions which the Court has now carefully read and considered. It is the Court’s considered view that the issue for determination is

whether the Applicant is entitled to the orders sought.

The Applicant has sought to be substituted with the 1

st

Defendant as the 1

st

Defendant has since been deceased. To this effect the Applicant has produced in Court a Death Certificate evidencing that the 1

st

Defendant is deceased.

On whether the Applicant can be substituted with the 1

st

Defendant, It is not in doubt that the 1

st

Defendant was used as legal representative of the Estate of

Chongo Guanga.

Order 24 Rule 4 of the Civil Procedure Rules

provides for the effect of death of one of several Defendants or of sole Defendant where it states as follows:

(1

) Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant 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 defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant.

From the said provision of law, it is not in doubt that the 1

st

Defendant can be substituted. It is however clear that the person that the 1

st

Defendant can be substituted with is his legal representative. See the case of

Muriithi Ngwenya …Vs… Gikonyo Macharia Mwangi & 2 others [2018] eKLR

where the Court held that;

“The law is clear on what happens when one of the Defendants dies and the cause of action survives or continues. Upon an application made, the Court shall cause the legal representative of the deceased to be made a party or to be substituted in place of the deceased party to proceed with the case.”

Section 2 of the Civil Procedure Act

defines legal representative as follows;

“

means a person who in law represents the estate of a deceased person, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued”.

It therefore follows that a legal representative being the one that represents the Estate of the deceased, the Applicant in order to be substituted in place of the 1

st

Defendant needed to prove that he is the legal representative of the Estate of the 1

st

Defendant. The Applicant apart from producing in evidence, a Death Certificate, the Applicant did not produced any letters of Administration

ad litem

to prove that he is a legal representative of the Estate of the 1

st

Defendant to warrant the Court Order for his substitution in place of the 1

st

Defendant. See the case of

Muriithi Ngwenya …Vs… Gikonyo Macharia Mwangi & 2 others [supra) where the Court held that;

The Applicant is seeking to substitute Lucy Wambui Gikonyo in place of 1

st

Defendant. Other than the mention of her being a wife of over 50 years, no evidence has been tabled to show that she indeed is a person contemplated by the above definition, that is to say, the legal representative of the estate of the 1

st

Defendant. The rule requires substitution of a

Defendant with a party clothe with legal representation.

11. Can this Court permit the substitution of the 1

st

Defendant by the said Lucy Wambui Gikonyo? In law one can only represent the estate of a deceased person when a grant of representation has been made in respect of the estate of such deceased person under the Law of Succession Act. The Law of Successions Act provides the procedure to be followed in the application for such a grant, and the various forms a grant may take including letters of administration.

Section 54 of the Act provides that a Court may limit a grant of representation which it has jurisdiction to make in any of the forms described in the Fifth Schedule. The Fifth Schedule provides as follows at paragraph 14 with respect to grants of administration limited to suit:

“When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the

nominee of a party in such suit

, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other Court between the parties, or any other parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution.” (emphasis is mine)

12. It is in doubt whether the Applicant has followed the aforestated procedure in seeking a legal representative of the deceased 1

st

Defendant’s estate. The Applicant is at liberty to so cite the intended substitute as per the provisions provided in the Succession Act for the purposes of the pending proceedings. No material has been presented to this Court that indeed the said Lucy Wambui Gikonyo is such legal representative of the 1

st

deceased Defendant nor whether the Applicant has filed citation proceedings in that regard.”

Therefore, the Court finds and holds that the Applicant has failed to prove that he is a legal representative of the Estate of the 1

st

Defendant to warrant him being substituted with the 1

st

Defendant. Furthermore, the Court notes that the 1

st

Defendant was sued as legal representative of the Estate

Chongo Guanga

and unless the Applicant is replacing the 1

st

Defendant in his capacity as a legal representative of the said Estate there would be no reason as to why there is a need for substitution as the estate is represented by the 2

nd

Defendant who is a co administrator as per the provision of

Section 81 of the Law of Succession Act

as rightly submitted by the Plaintiff/Respondent. See the case in

re Estate of John Kabiro Wang’ombe (Deceased) [2017] eKLR

the Court held that;

“That besides there is section 81 of the Law of Succession Act which provides-

Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them:

Provided that, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of such trust until he court has made a further grant to one or more persons jointly with him. (emphasis added)

I think as a co-administrator the applicant is not without recourse. He still retains the powers of an administrator.”

The Upshot of the foregoing is that the Court finds that the Applicant has failed to prove that he ought to be substituted. Consequently, the Court finds and holds that the

Notice of Motion Application

dated

28

th

January 2020,

is

not

merited and the same is dismissed entirely with costs.

It is so ordered.

Dated, signed

and

Delivered

at

Thika

this

3

rd

day of

December, 2020.

L. GACHERU

JUDGE

3/12/2020

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting court operations due to the

COVID-19

Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on

15

th

March 2020

, this

Ruling

has been delivered to the parties online with their consents. They have waived compliance with

Order 21 rule 1

of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Kariuki for Plaintiff/Respondent

Mr. Kimani Charage for Defendant/Applicant

L. GACHERU

JUDGE

3/12/2020