JOHN KARANJA WANJAU,JAMES WAWERU KANGETHE,DOUGLAS MUCHOKI,KINUTHIA NJOROGE & GIKONYO KIHUMBA v MAINA GITHAIGA,JOHN NGETHE,DANIEL MWANGI MUHIA,MUREITHI URUGARI,KIRUGI GATHOGO,JOHN KING’ARA,KAMAU NJORA & ALI HUSSEIN [2011] KEHC 2129 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO. 4409 OF 1991

JOHN KARANJA WANJAU ………………………….……..1ST PLAINTIFF

JAMES WAWERU KANGETHE ……………...…….……….2ND PLAINTIFF

DOUGLAS MUCHOKI …………………………...…………..3RD PLAINTIFF

KINUTHIA NJOROGE …………………………....……….….4TH PLAINTIFF

GIKONYO KIHUMBA …………………………......…………..5TH PLAINTIFF

V E R S U S

MAINA GITHAIGA ……………………………......………....1ST DEFENDANT

JOHN NGETHE ……………………………….....……..….…2ND DEFENDANT

DANIEL MWANGI MUHIA ………………….......….…….…3RD DEFENDANT

MUREITHI URUGARI ………………………….....………….4TH DEFENDANT

KIRUGI GATHOGO ……………………….......………….…..5TH DEFENDANT

JOHN KING’ARA …………………………......…………….…6TH DEFENDANT

KAMAU NJORA ……………………………....………………7TH DEFENDANT

ALI HUSSEIN ………………………………....……………….8TH DEFENDANT

R U L I N G

The Plaintiffs have applied under Order 1 rule 13 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act to have the 1st, 3rd, 7th and 8th Defendants, who are now dead, to be substituted by their respective sons whom they indicate to be the their legal representatives. The suit is over a suit of land that is L.R. No. 209 /136 /119, which either side claims. It is not indicated when the 1st, 3rd, 7th and 8th Defendants died, but it was in the course of this case which was filed in 1991.

The supporting affidavit to the application was sworn by the 3rd Plaintiff. It is clear from paragraph 6 of the affidavit that the persons sought to take over the case on behalf of the deceased Defendants have not taken out letters of administration. It is deponed as follows:-

“6. THAT the 1st, 3rd, 7th and 8th defendants legal representatives of the respective deceased have refused, failed and or neglected to apply for the Letters of Administration, intentionally and deliberately with bad motive to frustrate the hearing and determination of this matter.”

I agree with M/s Machio for the Defendants that the persons sought to replace the deceased Defendants have no capacity to be sued in the matter now that they have no grant of letters of administration. I agree with the decision in Centaury Oil Trading Co. Ltd. –Vs- Gerald M. Mwaniki & Another, HC Milimani Commercial Courts) C.C No. 14 of 2006, but wish to add as follows. Under Sections 79 and 82 of the Law of Succession Act (Cap. 160) it is only the administrator of the estate of a deceased who can sue or be sued following the death of the deceased. In Troustik Union International And Another –Vs- Mrs. Jane Mbeyu And Another, Civil Appeal No. 145of 1990 the Court of Appeal held that the deceased’s chose in action cannot be vested in or agitated by members of his family who are not his personal representatives, and that  personal representatives are persons who have obtained probate or letters of administration. In other words, and for the purposes of the instant application, the only persons who can be substituted as Defendants in this case are those who have probate or letters of administration. Not their sons who have neither.

This is sufficient to dispose of the application which I dismiss with costs.

DATED AND DELIVERED AT NAIROBI

THIS  31ST DAY OF MARCH 2011

A.O. MUCHELULE

J U D G E