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Court of AppealPartially AllowedCivil Appeal No 145 of 1990· [1993] KECA 89 (KLR)

Trouistik Union International & Another v Jane Mbeyu & Another

Court of Appeal
19 October 1993
APApalooKWKwachCOCockarOMOmoloPhilip Kiptoo TunoiTunoi
3,950 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that only someone with letters of administration can sue under the Law Reform Act, overrling Hintz v Mwakima.

What this practically means

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Executive summary

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A five-judge bench of the Court of Appeal, specially constituted at the parties' request to consider reversing the court's own precedent, allowed an appeal in part against a High Court (Bosire J) award of damages to two widows for a fatal road accident. The appellants admitted negligence at trial; the dispute concerned capacity. The respondents, who had not obtained letters of administration to their intestate husband's estate, sued under both the Law Reform Act and the Fatal Accidents Act. The Court affirmed the awards under the Fatal Accidents Act (Kshs 38,880 for loss of dependency and Kshs 6,100 funeral expenses), holding dependants competent to claim under that Act. However, it held that under section 82(a) of the Law of Succession Act only personal representatives - persons holding a grant of letters of administration - may enforce a deceased's chose in action under the Law Reform Act. The majority decision in Roman C Hintz v Mwangombe Mwakima, which had permitted next of kin to sue without a grant, was examined and declared wrongly decided and overruled, its authority already undermined by three High Court decisions and by necessary implication by Otieno v Ougo. The Court rejected the argument that Hintz should stand because of its nine-year longevity, noting inferior courts had consistently defied it. The Kshs 50,000 award under the Law Reform Act was set aside with costs. The judgment binds all subordinate courts on the requirement of a grant before suing under the Law Reform Act.

Key legal issues

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01

Standing to sue under the Law Reform Act for an intestate's estate

Holding

Only personal representatives within the meaning of the Law of Succession Act - i.e. an administrator to whom a grant of letters of administration has been made - may enforce the deceased's chose in action; the respondents, suing as dependants without a grant, lacked standing and the action under the Law Reform Act was incompetent

Reasoning

The Law Reform Act preserves causes of action vesting in deceased persons, but the person empowered to enforce them must be identified from the Law of Succession Act. Section 82(a) confers the power on personal representatives alone, and section 3 defines an administrator as a person to whom a grant of letters of administration has been made. The respondents never obtained a grant, so the award under the Law Reform Act was void.

p. 3
02

Whether Hintz v Mwakima remains good law

Holding

Hintz was wrongly decided and is overruled; its majority reasoning confusingly equated 'personal representatives' with next of kin and found no warrant in the Law of Succession Act

Reasoning

The Court dissected the majority judgments of Chesoni Ag JA and Nyarangi JA, finding their distinction between 'transmission' and 'vesting' of an intestate's property confused and unsupported by the Law of Succession Act. Kneller JA's lone dissent conformed with common law notions. Three High Court decisions and Otieno v Ougo had already undermined Hintz, which deserved its 'coup de grace'.

p. 6
03

Whether long-standing but erroneous precedent should be left undisturbed

Holding

The maxim communis error facit jus does not apply; a plainly wrong decision that inferior courts have consistently defied should not be preserved on the ground of longevity

Reasoning

Counsel argued Hintz had stood for nine years and been acted upon. The Court held the decision was never accepted law, inferior courts bound by stare decisis had consistently defied it, and it was impossible to see what rights were founded on it. Longevity of an erroneous ruling cannot sustain it.

p. 6
04

Damages under the Fatal Accidents Act

Holding

The award of Kshs 38,880 for loss of dependency and Kshs 6,100 for funeral expenses was affirmed; dependants may competently claim under the Fatal Accidents Act without letters of administration

Reasoning

As professed widows and dependants, the respondents were legally competent to claim for loss of dependency under the Fatal Accidents Act. The trial judge did the best he could with scant evidence, and the appellate court found his approach right and the award fair and reasonable; no quantum challenge was pressed.

p. 3

Legal principles established

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  • Only a personal representative - an executor or a person to whom a grant of letters of administration has been made - may enforce a deceased's chose in action under the Law Reform Act; dependants qua dependants lack standing for that purpose
  • An action brought as administrator before taking letters of administration is incompetent at inception
  • The Court of Appeal, sitting as an enlarged bench, may overrule its own prior decision; a wrongly decided precedent should not be preserved merely because it has stood for a long time

Court orders

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  1. 1.The appeal succeeds on the competence of the action under the Law Reform Act
  2. 2.The award of Kshs 50,000 under the Law Reform Act is set aside with costs
  3. 3.The damages awarded under the Fatal Accidents Act (Kshs 38,880) and Kshs 6,100 for funeral and incidental expenses are affirmed
On appeal from
High Court of Kenya at Mombasa
HCCC No 172 of 1987
Jurisdiction invoked
First appellate jurisdiction over the High Court (appeal from a judgment and decree of the High Court); constituted as a bench of five judges to consider reversing a prior decision of the Court of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Trouistik Union International & Another v Jane Mbeyu & Another", Case Analysis (1993). Civil Appeal No 145 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1993/89/eng@1993-10-19

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