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Court of AppealPartially AllowedCivil Appeal 112 of 1995

Gerald Mbale Mwea v Kariko Kihara & another [1997] KECA 103 (KLR)

Court of Appeal of Kenya
12 February 1997
1,476 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal slashed a fatal accident award, ruling adult children proved no real dependency and that a suit filed before getting letters of administration fails under the Law Reform Act.

What this practically means

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Executive summary

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The Court of Appeal (Akiwumi, Tunoi and Shah JJA) allowed this first appeal against the quantum of damages awarded by the High Court at Machakos (Asiemo J) in a fatal accident claim arising from the death of Margaret Wambui Kihara, knocked down by the appellant's motor vehicle. Liability had been agreed at 65% against the appellant. The court first held that the respondents, adult sons aged 52 and 48 who owned their own farms and whose dependency on their 75-year-old mother was 'a sham', had failed to prove actual dependency, a question of fact that must be proved by the party asserting it; the award under the Fatal Accidents Act was therefore set aside. Second, applying the five-judge decision in Trouistik Union International v Jane Mbeyu, the court held that a plaintiff has no locus standi to claim under the Law Reform Act until letters of administration have been obtained, that a grant obtained after filing suit does not retrospectively validate an intestate claim, and that consent on tortious liability does not cure the defect. The court allowed proved funeral expenses of Shs. 27,500 plus Shs. 200 for the police abstract and post mortem, but rejected the unsubstantiated Shs. 15,300 administration fees claim, awarding special damages of Shs. 18,005 (65% of Shs. 27,700) with interest at 12% from 29 April 1994. The trial judge's orders were set aside and substituted accordingly, with costs on the Resident Magistrate's scale below and 80% of appeal costs to the appellant. A request for refund of moneys paid was left to the superior court under Section 91(1) of the Civil Procedure Act.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents proved actual dependency so as to sustain an award under the Fatal Accidents Act
  2. 2.Whether the respondents had locus standi to claim under the Law Reform Act in the absence of letters of administration obtained before filing suit
  3. 3.Whether consent on liability obviated the need for letters of administration
  4. 4.What special damages were proved and payable

Key legal issues

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01

Dependency under the Fatal Accidents Act

Holding

Adult sons who owned their own farms and managed the deceased's farm did not prove actual dependency; the award under the Act was set aside

Reasoning

The court examined the evidence: the respondents were 52 and 48, owned farms, and the first respondent managed the deceased's coffee farm. The alleged support from the deceased's cow and coffee income was inconsistent with the sale of the cow after her death. The court found the claimed dependency to be a sham and held the trial judge erred in applying a multiplier and multiplicand without first establishing actual dependency.

p. 2
02

Locus standi under the Law Reform Act

Holding

Without letters of administration obtained before filing suit, the claim under the Law Reform Act is incompetent and cannot be validated retrospectively

Reasoning

Following Trouistik Union International v Jane Mbeyu, a five-judge decision of the Court of Appeal, the court held that a plaintiff must have obtained letters of administration before filing suit. For an intestate deceased, a grant obtained after filing does not retrospectively validate the claim. Consent on liability did not cure the defect because liability in tort is a distinct question from the competency of the statutory claim.

p. 2
03

Special damages

Holding

Funeral expenses of Shs. 27,500 plus Shs. 200 for police abstract and post mortem were allowed; the administration fees claim failed for want of substantiation

Reasoning

The appellant did not challenge the itemised funeral expenses proved in evidence, so they were allowed. The Shs. 200 for the police abstract and post mortem report was added. The claim for Shs. 15,300 in administration fees was unsupported by any receipt; the first respondent himself said he paid only Shs. 1,500 and produced no receipt. Special damages of Shs. 18,005, being 65% of Shs. 27,700, were awarded reflecting agreed liability.

p. 3

Legal principles established

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  • Dependency under the Fatal Accidents Act is a question of fact to be proved by the party asserting it
  • A plaintiff has no locus standi to claim under the Law Reform Act until letters of administration have been obtained, and obtaining them after filing suit does not cure the defect
  • Counsel for a plaintiff must establish that letters of administration were obtained before the suit was filed, failing which the Law Reform Act claim fails
  • Consent on tortious liability does not validate an otherwise incompetent Law Reform Act claim

Court orders

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  1. 1.The award under the Fatal Accidents Act is set aside
  2. 2.The orders made by the trial judge are set aside and judgment substituted for the respondents against the appellant only in the sum of Shs. 18,005/= with interest at 12% per annum from 29th April 1994 until payment
  3. 3.Respondents' costs in the superior court to be on the scale applicable in the Resident Magistrate's court as provided in Schedule VII of the Advocates (Remuneration) Order
  4. 4.Appellant to have 80% of the costs of the appeal
  5. 5.Refund of moneys paid, if any, left to the superior court under Section 91(1) of the Civil Procedure Act

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Machakos
H.C.C.C. No. 170 of 1994
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute (not expressly stated in the judgment)

Relief refused

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Damages under the Fatal Accidents Act

No dependency in law was proved

p. 2

Damages under the Law Reform Act

No letters of administration obtained before filing suit

p. 2

Claim for letters of administration fees of Shs. 15,300

Not substantiated; no receipt produced

p. 3

Order for refund of moneys paid

Matter for the superior court under Section 91(1) of the Civil Procedure Act

p. 3

Costs

Respondents' costs in the superior court on the Resident Magistrate's court scale per Schedule VII of the Advocates (Remuneration) Order; appellant to have 80% of the costs of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The issue of dependency is always a question of fact to be proved by he who asserts it.
p. 2dependency - burden of proof
It is now settled law that a plaintiff has no locus standi to claim under The Law Reform Act until after he has obtained letters of administration to administer the estate of the deceased concerned.
p. 2locus standi - Law Reform Act
That claim was incompetent at the date of its inception and an incompetent claim cannot be said to be made competent simply because the issue of tortious liability does not fall to be decided.
p. 2effect of consent judgment on liability
This appeal is therefore allowed and the orders made by the trial judge are set aside and we substitute therefor judgment for the respondents against the appellant only in the sum of Shs. 18,005/= with interest thereon at the rate of 12% per annum from 29th day of April, 1994 until date of payment.
p. 3final orders - disposition

Issues in the judgment

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minor

The judgment refers to 'Schedule VII of the Advocates (Renumeration) Order' - 'Renumeration' appears to be a typographical error for 'Remuneration'

minor

The judgment records conflicting accounts by counsel of the date of issue of the grant ad colligenda bona, which the court did not resolve

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, "Gerald Mbale Mwea v Kariko Kihara & another [1997] KECA 103 (KLR)", Case Analysis (1997). Civil Appeal 112 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/103/eng@1997-02-12

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