A. CASE BACKGROUND
1. Vide a plaint dated 22/7/2022 the Plaintiff Eleanor Museshi filed the suit herein ostensibly in her capacity as the legal representative of the estate of Caroline Muhonja Mwenesi against the two Defendants, based on alleged professional negligence in the manner of treating the deceased which it is averred led to her demise.
B. DEFENCE
2. The Defendants duly entered appearance and filed a defence dated 29/8/2022 and at paragraph 2 thereof the Defendants pleaded as hereunder:
``The Defendants deny the contents of paragraph 1 of the plaint and state the Plaintiff lacks the locus standi to institute this suit. The Defendants aver that this suit is a non-starter and a nullify in law and hereby give notice that they shall apply to strike out and /or dismiss the suit.’’
C. APPLICATION
3. Vide a notice of motion dated 12/9/2022 the Defendants have moved this court under the provisions of Section 1A, 1B, 3A of the Civil Procedure Act, Order 2 Rule 15 (a) (b) (c) and (d) of the Civil Procedure Rule 2010, and Section 54 and 82 of the Law of Succession Act CAP 160 Laws of Kenya, for the following orders:
1) That this Honourable Court be plead to strike out this suit with costs.
2) That the costs of this application be provided for.
This application is supported by the affidavit of Mitchell J.B Menezes advocate sworn on 12/9/2022.
D. SUBMISSIONS
4. Directions were made that the application be canvassed by way of written submissions. The Defendants duly filed submissions.
Defendants Submissions
5. It is submitted by the Defendants’ counsel that this suit herein was filed by a party that lacked the requisite locus standi to file suit for reason that the Plaintiff had not. First, obtained a grant of letters of administration prior to her institution of this suit. Reliance has been placed on several judicial authorities with the locus classica Troustic Union International and Another –vs- Jane Mbeya and Another (1993) eKLR.
E. ANALYSIS AND DETERMINATION
6. It is trite law that a party who desires to file a suit on behalf of the estate of a deceased person must first obtain letters of administration limited for that purposes. Indeed, this court has jurisdiction to issue limited grant of letters of administration pursuant to the provisions of Section 54 of the Law of Succession Act CAP Laws of Kenya which provides that:
“A court may, according to the circumstances of each case, limit a grant of representation which it has jurisdiction to make, in any of the forms described in the fifth schedule.’’
7. Section 82 of the said Act vests in the personal representative of a deceased person’s estate, the power to “enforce by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death,’’
8. The issues which emerge for determination are:
a) Whether the suit herein should be struck out on grounds of locus standi of the Plaintiff.
b) Who should bear the costs of this suit.
9. In order to address the issue of whether this suit ought to be struck out, it is instructive for this court to peruse the limited grant of letters of administration dated 30/9/2021 issued by Hon. M. A. Agutu in Kisumu Chief Magistrate Court Probate and Administration Miscellaneous Cause No. 836 of 2021. Re Estate of Caroline Muhonja Mwenesi, and attached to the supporting affidavit of Mitchelle J. B. Menezes advocate and marked as annexure AKH – 1.
10. A perusal of annexure AKH – 1 reveals that the limited grant of letters of administration of the estate of the deceased were limited to the purposes of filing suit and had a life span of 90 days from 30/9/2021. This suit was filed on 2/8/2022, that was a period of 7 months and 3 days after the expiry of the limited grant of letters of administration issued to the Plaintiff. The Plaintiff had no locus standi to file the suit.
11. In the case of Julian Adoyo Ongunga & Another –vs- Francis Kiberenge Bondeva (Suing as the administration of the estate of Fanuel Evans, Amudavi, deceased) herself on the consequence of filing suit on behalf of the estate of a deceased person without first obtaining a grant of letters or administration, thus:
“Further, the issue of locus standi is so cardinal in a civil matter since it runs through to the heart of the case. Simply put, a party without locus standi in civil suit lacks the light to institute/and/or maintain that suit even where a valid cause of action subsists. Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to a court acting without jurisdiction since it all amounts to null and void proceedings. It is also worth noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person in most cases the estate involves several other beneficiaries or interested parties.”
12. There exists a plethora of a judicial pronorcements on this issue which all buttress the legal position that a party cannot commence a suit on behalf on the estate of the deceased person prior to obtaining a grant of letters of administration. (See Bolton –vs- Salmi Khambi (1958) EA 360, Isaya Masira Momanyi –vs- Daniel Omwoyo &Another (2017) eKLR, Roman Chintz –vs- Mwangoma Mwakima (1988) 1 KAR and Virginia Edith Wamboi Otieno –vs- Joash Ochieng Ougo & Omolo Siranga (Civil Appeal No. 31 of 1987).
13. Premised upon the analysis made hereinabove I do find that this suit is indeed a non starter due to want of locus standi on the part of the Plaintiff and the entire suit is thus a nullify.
On the balance I do find that this application is well mented and I thus allow it.
I strike this suit out with costs to the Defendants.
This file is marked as closed.