REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL SUIT NO. E092 OF 2021

GLADYS MUTHONI WARUGURU..................................................................1^ST PLAINTIFF

BENARD KIRANGI...........................................................................................2^ND PLAINTIFF

(Suing as personal representatives and legal administrators of the estate of                            

JULIUS KARUTI MWENDA-Deceased)                                                                                       

-VERSUS-

CHEGE KANG’ARA........................................................................................1^ST DEFENDANT

JACOB E OMOI ARINGO.............................................................................2^ND DEFENDANT

MONWALK INVESTMENT LIMITED........................................................3^RD DEFENDANT

RULING

1.   The 1^st and 2^nd plaintiffs herein, being the administrators ad litem to the estate of Julius Karuti Mwenda (“the deceased”) brought the Originating Summons dated 12^th April, 2021 under the provisions of Order 37, Rule 1(d) & (g) of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act, Cap. 21 Laws of Kenya, supported by the grounds set out on its face and the facts stated in the affidavit of advocate Victor Ayieko Odhiambo. The following are the orders sought therein:

i.  THAT the advocates AYIEKO KANGETHE & CO. ADVOCATES be granted leave to file the application on behalf of the estate of JULIUS KARUTI MWENDA (Deceased).

ii. THAT the advocates AYIEKO KANGETHE & CO. ADVOCATES be granted leave to deposit in court proceeds recovered in CMCC NO. 7119 OF 2019 MILIMANI-Estate of JULIUS KARUTI MWENDA (Deceased) less the agreed costs and fees.

iii.  THAT the proceeds deposited in court be released, apportioned and invested accordingly upon a proper mode of distribution being offered by the legal representatives and beneficiaries in court.

iv. THAT the administrators be at liberty to apply to court generally.

2.   Going by the record, it is apparent that the Summons was brought ex parte and hence the defendants did not participate at the hearing thereof.

3.   At the hearing of the Summons, the advocate for the plaintiffs reiterated the averments made therein.

4.   I have carefully considered the grounds laid out on the body of the Summons and the facts deponed the supporting affidavit.

5.   From my reading of the Summons, it is clear that the orders sought therein are three-fold in nature. I will first begin with order (i) seeking leave of this court to file the instant Summons.

6.   In his supporting affidavit, Victor Ayieko states that his firm, namely AYIEKO KANGETHE & CO. ADVOCATES acted for the legal representatives of the estate of the deceased in Milimani CMCC NO. 7119 OF 2017 where judgment was delivered in favor of the estate to the tune of Kshs.5,125,800=/ and which sum has since been recovered as proceeds.

7.   Upon my perusal of the record, it is apparent that the aforementioned firm represented the plaintiffs in the above-cited case; being the widow and brother to the deceased.

8.   Going by the record, it is also apparent that the 1^st plaintiff by way of the letter dated 9^th February, 2022 and addressed to the High Court, states that she is unaware of the instant matter and that the same was filed without her instructions. The 1^st plaintiff therefore urges the court to abstain from hearing the same.

9.   Upon my consideration of the foregoing circumstances, and in the absence of any credible evidence to indicate the giving of clear instructions to the firm of AYIEKO KANGETHE & CO. ADVOCATES to come on record in the instant matter, including the absence of a notice of appointment filed, I am unable to grant the order for leave sought to file the Summons.

10. Upon arriving at the above finding, I see no reason to address my mind to the remaining orders sought.

11. Consequently, the Originating Summons dated 12^th April, 2021 is hereby struck out with no order on costs.  

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 28TH DAY OF MARCH, 2022.

...........................

J. K.  SERGON

JUDGE

In the presence of:

.......................................for the 1^stand 2^nd Plaintiffs

................................................ for the 1^st Defendant

...............................................for the 2^nd Defendant

................................................for the 3^rd Defendant