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Court of AppealPartially AllowedCivil Appeal 176 of 1995

Aga Wanjiru Mwaniki v Jane Wanjiru Mwaniki

Court of Appeal of Kenya
9 May 1997
879 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The appellant, executrix and widow of the deceased Sospeter Mwaniki Gachinga, appealed against a High Court ruling (Githinji, J.) of 25 May 1995 in Succession Cause No. 914 of 1991. The High Court had dismissed the respondent's out-of-time application for extension of time to claim provision for dependants under section 26 of the Law of Succession Act, but, on its own motion under section 76, set aside the order confirming the grant to the appellant and revoked the certificate of confirmation. Only the second limb was appealed; there was no cross-appeal on the extension of time. Before the Court of Appeal, counsel for the appellant argued a single ground: the judge revoked the grant suo motu when the issue was never argued, nor were the parties invited to address it. Counsel for the respondent maintained that section 76 empowered the court to act on its own motion. The Court of Appeal held that although section 76 does permit revocation on the court's own motion, this does not detract from natural justice. Applying Scrutton LJ's dictum in Blay v Pollard and Morris, approved in Gandy v Caspair Air Charters, it held that courts must decide only the issues on the record. The revocation issue was neither raised nor canvassed, so the judge erred in determining it without inviting submissions. The appeal was allowed, the impugned paragraphs of the ruling were set aside, and the appellant was awarded costs of the appeal and below.

Questions the Court framed

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

  1. 1.Whether the learned judge could, on his own motion under section 76 of the Law of Succession Act, revoke the confirmed grant when the issue of revocation was never raised or argued by any party

Key legal issues

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01

Whether a court exercising statutory power to revoke a grant of representation on its own motion may do so without hearing the parties on that issue

Holding

No. The statutory power under section 76 does not displace natural justice; the issue of revocation was neither raised nor canvassed by any party and was not among the issues before the court, so the judge could not decide it without inviting submissions.

Reasoning

The court accepted that section 76 permits revocation on the court's own motion, but held this does not detract from natural justice. Citing Scrutton LJ in Blay v Pollard and Morris, approved in Captain Harry Gandy v Caspair Air Charters, it reaffirmed that cases must be decided on the issues on the record and new issues must be placed on the record by amendment. Since revocation was never raised or argued, the judge should have invited submissions before deciding it. Deciding otherwise condemned the parties unheard and cannot stand.

p. 2

Legal principles established

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  • A court may only decide issues on the record; it may not, even under express statutory power to act on its own motion, raise and determine a new issue without inviting the parties to be heard on it.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order appealed from varied by setting aside paragraph 2 thereof (setting aside the Order dated 10th July 1992 confirming the Grant and revoking the Certificate of Confirmation)
  3. 3.Order appealed from varied by setting aside paragraph 3 thereof (that the Respondent's application be heard afresh with liberty to file an objection/protest within 21 days)
  4. 4.Appellant to have the costs of this appeal and in the court below

The bench

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

majority

Wrote the judgment

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Wrote the judgment

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Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 914 of 1991
Jurisdiction invoked
Appeal with leave from the High Court in a succession cause (Law of Succession Act)

Relief refused

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Respondent's application for extension of time to make a claim for provision for dependants under section 26 of the Law of Succession Act

Dismissed by the High Court; no cross-appeal was filed against that limb of the ruling

p. 1

Costs

The appellant shall have the costs of this appeal and in the court below.

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.

Cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment.
p. 2Deciding cases on issues on the record (Scrutton LJ, cited with approval)
Whilst it is true that section 76 of the Act does empower the court o n an application of a party or of its own motion to revoke a grant in specified cases, this does not in any way detract from the principles of natural justice.
p. 2Statutory suo motu power does not displace natural justice
Accordingly and, for the reasons above stated, we allow the appeal and vary the Order appealed from by setting aside the following two paragraphs therefrom
p. 2Final orders - disposition
The appellant shall have the cots of this appeal and in the court below.
p. 2Costs order

Issues in the judgment

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minor

Typographical error in costs order: 'cots' for 'costs'.

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, "Aga Wanjiru Mwaniki v Jane Wanjiru Mwaniki", Case Analysis (1997). Civil Appeal 176 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/416/eng@1997-05-09

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