Kamau v Kamau (Acting as the administrator of the Esate of Wainaina Kuria Ngachui t/a Andu Driving School) (Cause 180 of 2018) [2025] KEELRC 2955 (KLR)
The bottom line
#A Kenyan employee's claim against his late employer collapsed because he waited over a year to substitute the estate and then tried to sue it while administering it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claim abated following the Respondent's death and the failure to seek substitution within one year
- 2.Whether the Claimant, as administrator of the deceased Respondent's estate, could legally prosecute the Claim against the estate he represents
- 3.What the proper procedural route was for the Claimant after the death of his Employer
Key legal issues
#Abatement of the employment claim on the death of the Respondent
The Claim abated because substitution was sought only over three years after the Respondent's death, with no extension of time granted by the Court
Order 24 Rule 4 of the Civil Procedure Rules applies where a Respondent dies, and the E&LRC has adopted Order 24 Rule 3 as a default Rule for employment claims. The Court of Appeal in Said Sweilem Gheithan Saanum elaborated that an application for substitution must be made within one year of death or within such extended time as the Court allows; otherwise the suit abates of its own force. Over one year lapsed here, no extension was granted, and no orders of substitution could be traced in the record.
Whether a Claimant appointed administrator of the deceased Respondent's estate can prosecute the Claim against that estate
He cannot; such dual representation violates the adversarial architecture of the E&LRC Rules and the administrator's fiduciary duty to the estate
The role of an administrator under the Law of Succession Act, Cap 160 is to act in the interest of the estate, not against it. Employment disputes under the E&LRC [Procedure] Rules, 2024 are adversarial, with Claimant and Respondent as polar opposites. The Claimant, having taken out letters of administration in Naivasha CM Succession Cause E076 of 2024, could not faithfully discharge his duty to the estate while simultaneously seeking compensation and terminal benefits from it.
The proper procedural route after the death of an Employer
The Claimant should have moved under Part VIII of the Employment Act on insolvency, or sought the aid of the Public Trustee
Section 67[a][ii] of the Employment Act provides that where an Employer has died, his estate is administered in accordance with the Law of Succession Act. Section 66 allows an Employee to apply to the Cabinet Secretary, who may pay the debt out of the National Social Security Fund. Alternatively, where beneficiaries decline representation, Section 6 of the Public Trustee Act allows a person with a legitimate interest to request the Public Trustee to act.
Legal principles established
#- A suit abates as a matter of course where no application for substitution of a deceased party is made within one year, or within such extended time as the Court allows
- The E&LRC has adopted Order 24 Rule 3 of the Civil Procedure Rules as a default Rule on abatement of employment claims
- An administrator must act in the interest of the estate, not against it, and a claimant cannot litigate against an estate he administers under the adversarial procedural architecture of the E&LRC Rules
- Where an Employer dies, the Employee's route is the insolvency procedure under Part VIII of the Employment Act, with payment out of the National Social Security Fund upon the Cabinet Secretary's satisfaction
Court orders
#- 1.The Claim is declined
- 2.No order on the costs
- 3.The file is closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the E&LRC [Procedure] Rules, 2024 (delivered pursuant to Rule 68[5])
Relief refused
#12 months' salary in compensation for unfair termination (Kshs. 278,301.60)
The Claim abated and the Claimant could not legally represent the deceased Respondent; proper route was insolvency procedure under Part VIII of the Employment Act
Terminal benefits at Kshs. 895,664
Claim abated; debts fall within Section 68 of the Employment Act to be determined by the Cabinet Secretary under the insolvency procedure
Certificate of service
Claim abated and declined
Costs
No order on costs made
Costs
No order on the costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is ordered: a. The Claim is declined. b. No order on the costs. c. The file is closed.
The Court is persuaded that there is no valid Respondent left, to the Claim; the Claimant cannot legally represent the deceased Respondent in this Claim; the Claim has abated
Generally, the death of a party does not cause the suit to abate, if the cause of action survives. But within 1 year of the death of a party, or within such time as the Court may in its discretion, for good reason determine, an application must be made for the legal representative to be made a party.
The role of an administrator to the estate of a deceased person, under the Law of Succession Act, Cap 160 the Laws of Kenya is to act in the interest of the estate, not against its interest.
Although there is no specific Rule on abatement of suits under the E&LRC [Procedure] Rules, 2024, the E&LRC has adopted Order 24 Rule 3, on abatement of employment claims, as a default Rule.
Issues in the judgment
#The judgment does not state the cause number or citation of the Claim, nor the Claimant's name, identifying the parties only by role
The judgment is unclear whether the application for substitution was ever heard and granted
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Kamau (Acting as the administrator of the Esate of Wainaina Kuria Ngachui t/a Andu Driving School) (Cause 180 of 2018) [2025] KEELRC 2955 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2955/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.