Murimi & another v Murimi & 2 others (Miscellaneous Succession Cause 76 of 2013)  KEHC 1894 (KLR) (16 March 2023) (Ruling)
Neutral citation:  KEHC 1894 (KLR)
Republic of Kenya
Miscellaneous Succession Cause 76 of 2013
RM Mwongo, J
March 16, 2023
Peter Mwangi Murimi
Stephen Kamau Murimi
Daniel Kinyau Murimi
Jane Muthoni Karweru (Deceased)
Simon Muthii Karweru
Background and Application
1.The applicant filed these summons for substitution on July 6, 2021 pursuant to rule 49 & 73 of Probate & Administration Rules seeking the following orders:1.That this court do appoint Simon Muthii Karweru as the legal representative of the 2nd respondent the late Jane Muthoni Karweru for purposes of these proceedings.2.That this court do substitute the late Jane Muthoni Karweru with Simon Muthii Karweru in these proceedings.
2.Prior to that, the applicant had filed summons for revocation of grant on September 13, 2013 against the two respondents and the matter dragged in court since then for various reasons.
3.The applicants assert in their grounds that the 2nd Respondent Jane Muthoni Karweru died on the July 28, 2020 while these proceeding were still pending; that the intended substitute 2nd respondent is the eldest surviving son of the late 2nd respondent and is in actual possession of the disputed property; that the family of the late 2nd respondent led by the intended substitute Simon Muthii Karweru has ignored to apply for letters of administration and substitution of their late mother; and that the cause will abate if no substitute is made as prayed to the great prejudice of the applicant.
4.Further the applicant asserts that the family of the late 2nd respondent led by the intended substitute Simon Muthii Karweru has ignored to apply for letters of administration and substitution of their late mother; and that the intended 2nd Respondent deponed that he is not a legal representative of the estate of Jane Muthoni Karweru, deceased.
5.In addition to the grounds, the applicant has deposed a supporting affidavit, containing, inter alia, the following averments:a.That the summons for revocation of grant was filed on September 13, 2013 against the two respondents and the matter has dragged in court since then.b.That the 2nd Respondent Jane Muthoni Karweru died on the July 28, 2020, and is survived by several children the eldest being Simon Muthii Karweru.c.That the family of the late 2nd respondent has failed ignored and or neglected to take steps towards substituting her within the prescribed period.d.That Simon Muthii Karweru is in possession and cultivation of the land which is the subject matter of these proceedings and is best suited to substitute his mother.
6.In their submissions, the applicants argued that the court has inherent unlimited jurisdiction to issue the Orders sought for the furtherance of justice; and that this court has inherent powers to appoint any relevant person as legal administrator of the estate of the deceased/ respondents upon being satisfied that person is an apparent administrator of the estate. In the instant case that the intended substitute is the eldest son of the deceased /Respondent.
7.In his replying affidavit dated July 5, 2021, the 1st respondent states:i.That he opposes the application and it should be dismissed with costs.ii.That rule 20 of the 5th Schedule to Cap 160, deals with a deceased person to whom grant of representation had been issued by the Court. The Deceased, Jane Muthoni Karweru, had no grant of probate in this cause.iii.That rules 49 & 59 do not grant this court the powers of substitution neither does rule 73.iv.That he is not the legal representative of the estate of Jane Muthoni Karweru, deceased.
8.The applicants submit that the proceedings herein are pending hearing and final determination. They urge that the 2nd respondent was enjoined in this matter in her capacity as the widow and legal representative of her late husband estate. Her late husband was the administrator of the estate herein of Kithuri Rukenya.
9.They also submit that if substitution is not effected as sought herein, the Applicant will loss a substantial part of the claim since they will only left with the part of the estate, being administered by 1st Respondent. This would be an injustice on a technicality, and the inherent powers of this court should be invoked it stop such injustice.
10.The applicant urges this court to endeavour to develop jurisprudence and not down its judicial pen merely because the intended substitution has not obtained a grant. Thus they submit that this count should and has the power to make an Order appointing Simon Muthii Karweru as the legal representative of the Estate of the 2nd respondent and to thereafter make second order ot substitutions.
11.The applicants urge that the authorities cited by the intended 2nd respondent are distinguishable since no order had been made appointing the persons substitute as “Legal representative" The substitution therein were made without first appointing the substitute as legal representative.
12.The respondent argues that Simon Muthii Karweru cannot be a substitute because he is not an administrator or legal representative in the estate of Jane Muthoni Karweru.
13.The respondent refers to section 2 of Civil Procedure Act which defines a Legal Representative as a person who in law represents the Estate of a deceased person.
14.reference was made to the case of Alexander Mutunga Wathome v Peter Lavu Tumbo & another  eKLR where Nyamweya, J, declined to substitute in a case where the applicant had not produced evidence to show that he has been given such a grant of representation with respect to the 2nd Protestor's estate, and cannot therefore be substituted in place of the 2nd Protestor.
15.Furter the respondent argues that order 24 of the Civil Procedure is not applicable in succession causes in pursuance with the provisions of Rule 63 of the Probate and Administration Rules. for this they cite In Re Estate
Issues for determination
16.the only issue is whether the 2nd Respondent should be substituted.
Analysis and Determination
17.The applicants submission is that the court has inherent unlimited jurisdiction to issue orders for furtherance of justice despite the applicant not being a legal representative of the person sought to be substituted.
18.The respondent refers to section 2 of Civil Procedure Act which defines a Legal Representative as follows:
19.In the case of Alexander Mutunga Wathome v Peter Lavu Tumbo & Another  eKLR Nyamweya, J (as she then was) held:
20.Rule 63 of the Probate and Administration Rules cap 160 provides which provisions of the CPA are applicable as follows:
21.This was buttressed in the case In Re Estate of Maringa Kiondo (deceased)  eKLR where Muchemi, J held:
22.Accordingly, only a legal representative can properly substitute a deceased litigant. It is only a person who legally represents the estate of a deceased person that has capacity to represent that estate in all matters including litigation.
23.In the case of Justin Boso & others v Mwauchi Bembito & 2 others  eKLR Munyao J held:
24.The applicants claim that this matter had dragged in court due to the failure of the respondents substituting the deceased 2nd respondent. It upon them to seek to cite the 2nd intended Respondent so as to take up administration of the estate of the deceased 2nd Respondent.
25.Section 66 of the Law of Succession Act provides:
26.In addition, rule 22(1) of the Probate and administration Rules is explicit that:
27.In the case of Justin Boso & others v Mwauchi Bembito & 2 others  eKLR Munyao J held:
28.I think enough has been said to show that the only person that can legitimately substitute the deceased litigant is a personal representative. Accordingly, I hold that the applicant’s application cannot succeed, and the same is dismissed
DATED AT KERUGOYA THIS 16TH DAY OF MARCH 2023R. MWONGOJUDGEIn the presence of:Mwaniki holding brief for Wahome for Respondent.No representation Kiama for ApplicantCourt Assistant, Murage