MISCELLANEOUS APPLICATION NO. E017 OF 2022
SUSAN KANYI……………………………………………………APPLICANT
-VERSUS-
THE ESTATE OF STEPHEN KANINI WANG’ONDU…1ST RESPONDENT
THE REGISTRAR OF LANDS NYERI COUNTY………2ND RESPONDENT
RULING
- Before the court for determination is the Notice of Preliminary Objection dated 1st August, 2023 filed by the 1st Respondent THE ESTATE OF STEPHEN KININI WANG’ONDU seeking to have the entire suit struck out.
- The Applicant SUSANA KANYI opposed the Preliminary Objection. The matter was canvassed by way of written submissions. The 1st Respondent filed the written submissions dated 28th December, 2023 whilst the Applicant relied upon her written submissions dated 1st February, 2024.
BACKGROUND
- This succession cause relates to the estate of the late JOSEPH KANYI (hereinafter ‘the Deceased’).
- The Applicant who is a daughter to the Deceased filed a Summons dated 14th July, 2022 seeking various orders. The 1st Respondent in response filed this Notice of Preliminary Objection dated 1st August, 2023 seeking to have the entire Summons struck out on grounds that
“The 1st Respondent christened the Estate of Stephen Kinini Wang’ondu (Deceased) is not a legal person capable of being sued/suing which divests the jurisdiction of the court to entertain the Miscellaneous Application in its entirety”
- As stated earlier the Preliminary Objection was opposed.
ANALYSIS AND DETERMINATION
- The 1st Respondent submits that the estate of a Deceased person cannot sue or be sued. That the Applicant ought to have sued the ‘legal representative (s)’ of the estate of the Deceased.
- On her part the Applicant submits that this court has jurisdiction to hear and determine the matter. She assert that the 1st Respondent waived the right to claim it was not a legal person through acquiescence by participating in the suit upto the present time.
- The Applicant urges that the issue raised in the Preliminary Objection is mere technicality which the court ought to overlook. She urges that the Preliminary Objection be dismissed.
ANALYSIS AND DETERMINATION
- I have considered the Notice of Preliminary Objection filed in this matter as well as the written submissions filed by both parties. The only issue for determination is whether the Preliminary objection has merit.
10. The definition of a Preliminary Objection was given in the case of
In Mukhisa Biscuit Manufacturing Co. ltd -vs- West End Distributors ltd (1969) EA 696, where Sir Charles Newbold defined a Preliminary Objection as follows:-
“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion”.
11. In the case of Oraro Vs Mbaja (2005) 1KLR 141, it was held that:-
“Anything that purports to be a Preliminary Objection must
not deal with disputed facts and it must not derive its
foundation from factual information which stands to be tested
by rules of evidence.”
12. It is not in dispute in the suit instituted on 14th July, 2022 that, the
Applicant named the 1st Respondent as
“The Estate of Stephen Kinini Wang’ondu.’ This certainly amounts
to a misdescription of the 1st Respondent.
13. The 1st Respondent submits that the Applicant ought to have sued ‘the
Legal Representative [s]’ of the estate of Stephen Kinini
Wang’ondu.
14. Notwithstanding this misdescription itself the 1st Respondent did enter
appearance in this matter and appointed the firm of Mahugu Mbarire
Advocates to act for it. The 1st Respondents then filed a Notice of
Preliminary Objection dated 18th October, 2022 challenging the locus
standi of the Applicant. The Honourable Court delivered a ruling on 27th
July, 2023 dismissing the Preliminary Objection.
15. The question which would then arise is whether by entering appearance
and participating in the suit the 1st Respondent is now estopped from
raising any objection to the mis-description of itself. Is this a mere
technicality which can be cured by reference to Article 159(2) (d) of
the Constitution of Kenya 2010.
16. In any proceedings the correct party must be sued or named
as a Defendant. There can be no legal action against an estate of a
Deceased person. The estate is at all times represented by the Executors
and/or Administrators and it is they who must be sued.
In Phares Omondi Okech & 3 others (Suing for and on
behalf of Kasgam Community - Wadhari Clan) v Victory
Construction Co. Ltd & Kisumu Water & another (2015)
eKLR the Court held as follows:-
“… That the issue of capacity to sue cannot be a matter of
procedure as counsel for the plaintiffs submitted to be
cured through Article 159 of the constitution by the
consideration of substantive justice. The lack of capacity
cannot be cured by Article 159 of the constitution that
emphasizes on substantive justice or by applying the
oxygen principle under Section 1A, 1B and 3A of the Civil
Procedure Act…” [Own Emphasis]
17. The above authority relates to ‘the capacity to sue’ which is not the
matter in issue here. The question the court is considering here is the
misdescription of the 1st Respondent.
18. In the case of FUBECO CHINA FUSHUN -VS- NAIPOSHA
COMPANY LIMITED & Others [2014] eKLR Hon Justice Gikonyo
held that:-
“Such misdescription of the plaintiff [or indeed the
Defendant] is not factual to the proceedings and does
not default a party’s cause of action. In taking this
decision the court is guided by the constitutional desire
to serve justice which is the very reason why
courts have been given unfettered discretion in ordering
an amendment in such cases. In order to reflect and have
the correct parties before the court I hold and find that
this is not the case of a non-existent or faceless entity
that would be invariably be incapable of suing or being
sued. It is a case of pure misdescription of a party and it
is governed by the law on misdescription of parties in a
contract.” [own emphasis]
19. There is no doubt that an entity known as the Estate of Stephen
Kinini Wang’ondu does exist. The estate is represented by
Administrators/Executors who ought to have been sued in that capacity.
20. It is pertinent to note that this Preliminary objection comes rather late
in the day. The 1st Respondent did enter appearance in the matter and
by filing and prosecuting a Notice of Preliminary Objection did proceed
to participate in the suit. There can be no doubt that the Preliminary
Objection now being raised is an afterthought.
21. Striking out of a suit has been declared to be a draconian measure.
Courts ought to aim at keeping a suit alive to allow parties
the opportunities to ventilate their cases. In UCHUMI
SUPERMARKETS LIMITED & Another -vs- SIDHI
INVESTMENTS LIMITED [2019] eKLR the court of Appeal
emphasized that:-
“The striking out of a pleading has time and time again been
described as draconian and an order of last resort.”
22. The court is guided by Article 159 (2) (d) of the constitution of Kenya
2010 which exhorts court to administer substantive justice without
undue regard to procedural technicalities.
21. I find that this misdescription of the 1st Respondent is not fatal. The
court may and hereby does direct the plaintiff to amend their pleadings.
22. Accordingly I find no merit in this Notice of Preliminary Objection dated
1st August, 2023. The Plaintiff’s are directed to amend their pleadings
to reflect the correct description of the 1st Respondent.
23. Costs are awarded to the 1st Respondent.
Dated in Nyeri this 6th day of June, 2024.
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