Chari Mwadime & Rachael Nyasi Makoko Kimbio (Both suing as Personal representatives of the estate of Janet M. Mwadime) v The administrators of the estate of Caleb Nyende, Jubilee Insurance Co.Ltd & William Mbukuli Nyende (Sued as the personal Representative of the estate of Caleb [2015] KEHC 1342 (KLR)

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 2nd 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 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 1st 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 1st 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 2nd 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