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Court of AppealPartially AllowedCivil Appeal No 1 of 1982· [1984] KECA 44 (KLR)

Morjaria v Abdalla [1984] KECA 44 (KLR)

Court of Appeal of Kenya
4 April 1984
AHA.R.W. HancoxZCZ.R. ChesoniJNJ.O. Nyarangi
2,987 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that heirs can replace deceased parties in an appeal using limited grants, but sloppy paperwork cost them money.

What this practically means

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Executive summary

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This Court of Appeal decision, delivered at Nairobi on 4 April 1984 by Hancox JA and Chesoni and Nyarangi AG.JJAA, dealt with a Notice of Motion under Rules 42 and 96 seeking the substitution of Bhavin and his step-mother Lalita as parties to Civil Appeal No 1 of 1982 following the deaths of the appellants, Ranchod and his wife Hariben. The respondent objected that no validly appointed legal representatives existed, relying on Re Crowhurst Park to argue that substitution was only possible on full grants of probate or administration. The court rejected that approach, holding that rule 96 requires only that the person be properly made a legal representative by the High Court under the Law of Succession Act. Central to the judgment was the holding that a pending appeal is itself a 'suit' within paragraph 14 of the fifth schedule, adopting Bhagat Singh v Chauhan and distinguishing Mityana Ginners. The court upheld the limited grant of Masime J made under section 54 and paragraph 14, but held that a grant ad colligenda bona, as sought under the order of Aganyanya J, was inappropriate for representation in litigation, its purpose being confined to collecting and preserving perishable estate property; however, it treated the operative words of that grant as a valid paragraph 14 grant, disregarding the surplusage. Despite the mismatch between the motion and the grants, the court exercised its discretion to substitute Bhavin and Lalita as parties in place of Ranchod personally and in his representative capacity, and for Bhavin to replace Ranchod as representative of Hariben, but ordered the applicants to pay the respondent's costs of the application in any event because of the gross error in the form of the motion. The substantive appeal against Mead J's refusal to set aside the judgments for specific performance remained to be heard.

Key legal issues

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01

Whether an appeal is a 'suit' for purposes of limited grants of representation

Holding

An appeal is a civil proceeding commenced in a manner prescribed and is therefore a suit within section 2 of the Civil Procedure Act and paragraph 14 of the fifth schedule

Reasoning

The court examined the definition of 'suit' in section 2 of the Civil Procedure Act and dictionary meanings, and adopted the reasoning of Briggs JA in Bhagat Singh v Chauhan, holding that an appeal is a new proceeding commenced when instituted. It found it would be illogical and futile if paragraph 14 of the fifth schedule did not relate to a pending appeal as well as a suit.

p. 3
02

Effect of a grant ad colligenda bona

Holding

Such a grant is confined to collecting and preserving perishable or precarious estate property and cannot authorise representation of the deceased in litigation

Reasoning

Relying on rule 36 of the Probate and Administration Rules and Whitehead v Palmer, the court held the purpose of the grant is collection of perishable property where a full grant cannot be made in time. It is not a representation grant, and where the operative words of a defective grant nevertheless constituted a valid paragraph 14 grant, the court was prepared to treat it as such.

p. 4
03

Whether the court may regularise an inverted or defective application for substitution

Holding

The court's powers under rule 96 were wide enough to allow substitution despite the mismatch between the motion and the grants, but the applicants bore the costs

Reasoning

The grants and the motion were expressed the other way round as to which deceased each applicant represented. The court declined to go behind the High Court orders generally, but found the operative words of the Aganyanya J grant valid under paragraph 14, and exercised its discretion under rule 96 to do what was clearly right, penalising the gross error in the form of the motion on costs.

p. 5

Legal principles established

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  • An appeal is a civil proceeding commenced in a manner prescribed and therefore falls within the definition of a 'suit', so the High Court may grant limited representation for the purpose of a pending appeal.
  • Rule 96 permits the court to appoint as a party to an appeal only a person who has been properly made a legal representative by the High Court under the Law of Succession Act.
  • A grant ad colligenda bona is limited to collecting and preserving the estate and cannot be used to confer the right to represent a deceased person in a suit or appeal.

Court orders

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  1. 1.Bhavin and Lalita to be made parties to the appeal in place of Ranchod himself
  2. 2.Bhavin to be made a party in place of Ranchod in so far as he was an appellant in his representative capacity for Hariben
  3. 3.The applicants to pay the respondent's costs of the application in any event
On appeal from
High Court of Kenya
null
Jurisdiction invoked
Rules 42 and 96 of the Court of Appeal Rules (Civil Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Morjaria v Abdalla [1984] KECA 44 (KLR)", Case Analysis (1984). Civil Appeal No 1 of 1982. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/44/eng@1984-04-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.