Mohammed Abdulrehman Mohamed Hatimy v Kalidas Kanji (Africa) Limited & another [2000] KECA 65 (KLR)
The bottom line
#The Court of Appeal dismissed a man's attempt to revive his late father's appeal because he had no legal proof he could act for the estate.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of an applicant claiming to be a legal representative of a deceased party
The application fails because the applicant, having made no application for a grant of representation and adduced no evidence of representation, has no locus standi and is a busybody.
The applicant asserted in the supporting affidavit that he was a beneficiary and the legal representative of the deceased former appellant. However, counsel conceded that no application for a grant of representation had been made by the applicant or anyone else, and no evidence of representation was placed before the Court. Without a grant, the applicant could not step into the shoes of the deceased appellant whose appeal had been struck out, and the application for extension of time and leave to institute the appeal in a representative capacity could not stand.
Improper practice of counsel swearing affidavits on contested facts
The supporting affidavit sworn by the applicant's advocate was defective because it deposed to matters of which the advocate had no direct knowledge and on which he could not be cross-examined.
The supporting affidavit was sworn by Mr. Ushwin Khanna, advocate for the applicant, who deposed that the applicant was a beneficiary and legal representative of the estate. The Court, citing David Kinyanjui & Others v Meshack Omari Monyoro, noted that counsel gave no explanation for swearing to facts outside his own knowledge. This defective affidavit compounded the absence of any evidentiary support for the claim to representation, reinforcing the dismissal.
Legal principles established
#- A person who claims to sue or apply as legal representative of a deceased person must place before the court evidence of a grant of representation; a bare assertion without a grant confers no locus standi.
- An advocate should not swear a supporting affidavit deposing to matters of fact within the client's knowledge on which the advocate cannot be cross-examined.
Court orders
#- 1.The application is dismissed with costs
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rules 4 and 83 of the Court of Appeal Rules (extension of time to lodge notice of appeal and file record of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohammed Abdulrehman Mohamed Hatimy v Kalidas Kanji (Africa) Limited & another [2000] KECA 65 (KLR)", Case Analysis (2000). Civil Application (Mombasa) - Notice of Motion dated 16th August 1999 (intended appeal from Civil Appeal No. 18 of 1998). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/65/eng@2000-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.