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Court of AppealPartially AllowedCivil Appeal No. 30 of 2013

Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] KECA 250 (KLR)

Court of Appeal of Kenya
13 November 2014
HOH. M. OkwenguASAsike-MakhandiaFSF. Sichale
4,538 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that beneficiaries cannot file succession cases without first obtaining a grant of letters of administration, nullifying all orders the respondent had obtained.

What this practically means

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Executive summary

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This appeal arose from a ruling of Nzioka, J. of the High Court at Mombasa dated 11th June 2012, which overruled the appellant's preliminary objection against proceedings instituted by his brother, the respondent, following their father's death. The respondent, without a grant of letters of administration, had filed a petition seeking to be appointed administrator ad colligenda bona and obtained ex parte orders freezing the deceased's bank accounts. The appellant objected on grounds of the respondent's lack of locus standi, the unavailability of injunctions in succession matters, the irregularity of the freezing orders, and the illegal suo moto consolidation of the parties' competing succession petitions. The Court of Appeal allowed the appeal in a unanimous judgment. It held that locus standi in succession matters is settled: a litigant is clothed with locus standi only upon obtaining a limited or full grant of letters of administration, distinguishing locus standi from cause of action per Alfred Njau v City Council of Nairobi and applying Otieno v Ougo. The respondent's petition was therefore a nullity ab initio. The Court, however, affirmed that injunctive relief is available in succession causes under section 47 of the Law of Succession Act read with rule 73 of the Probate and Administration Rules, following Floris Pierro v Giancario Falasconi. Applying the Mukisa Biscuit test, it held the Judge erred in deferring the preliminary objection instead of determining the pure points of law in limine. It further held, applying Evans v Esso Kenya Ltd, that the suo moto consolidation order was illegal, and that all orders obtained by the respondent, including the account-freezing orders, were a nullity. The Court set aside the High Court ruling, allowed the preliminary objection, and awarded costs to the appellant.

Questions the Court framed

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

  1. 1.Whether the respondent had locus standi to institute the summons application dated 3rd May, 2011 without a grant of letters of administration
  2. 2.Whether the Law of Succession Act and the Probate and Administration Rules allow the granting of injunctive orders in succession matters
  3. 3.Whether the learned Judge erred in deferring determination of the preliminary objection to a later stage instead of deciding it in limine
  4. 4.Whether the suo moto consolidation of the two succession petitions was valid
  5. 5.Whether the bank accounts jointly operated by the appellant and the deceased passed to him by survivorship

Key legal issues

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01

Locus standi in succession proceedings

Holding

The respondent, a beneficiary but not a holder of letters of administration, lacked locus standi to institute the petition and summons; the proceedings were a nullity ab initio.

Reasoning

The Court applied Otieno v Ougo, holding that an administrator cannot bring an action before taking out letters of administration, and distinguished locus standi from cause of action per Alfred Njau v City Council of Nairobi. Being aware of a purported Will, the respondent should have sought to have the executor propound the Will or renounce executorship, or proceed under section 26 of the Law of Succession Act.

p. 5
02

Availability of injunctive relief in succession causes

Holding

Injunctive orders ARE available in succession matters under section 47 of the Law of Succession Act read with rule 73 of the Probate and Administration Rules.

Reasoning

Following Floris Pierro v Giancario Falasconi, the Court held that section 47 gives the Court all-embracing powers to make necessary orders including injunctions to safeguard a deceased's estate, read together with rule 73 which reserves the Court's inherent jurisdiction. This holding rejected the appellant's contention that injunctions are unavailable in succession matters, though it was immaterial given the respondent's lack of locus standi.

p. 6
03

Treatment of preliminary objections on jurisdiction and locus standi

Holding

The learned Judge erred in deferring determination of the preliminary objection instead of deciding it in limine; such objections, if purely on points of law, should be determined on their merits to save time and costs.

Reasoning

Applying the Mukisa Biscuit test, the Court held that a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised. Locus standi and jurisdiction being critical preliminary issues, the Judge should have determined them before other pending applications.

p. 7
04

Validity of the suo moto consolidation order

Holding

The consolidation order made suo moto by Odero, J. was illegal, and a null petition cannot be consolidated with a valid one.

Reasoning

The Court applied Evans v Esso Kenya Ltd, which disapproved determining substantive issues at a mention without hearing submissions or the parties' consent, describing the practice as repugnant to justice. Since the respondent's petition was a nullity ab initio for want of locus standi, the consolidation was illegal and the Judge could not refuse to strike out the petition on the basis of that consolidation.

p. 8
05

Orders obtained without locus standi

Holding

All orders obtained by the respondent, including the freezing of the deceased's bank accounts, were a nullity.

Reasoning

Having found that the respondent lacked locus standi to institute the petition, the Court reasoned that all orders flowing from those proceedings necessarily fell with them. The Court declined to determine the survivorship question relating to the joint bank accounts as unnecessary given this conclusion.

p. 8

Legal principles established

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  • A litigant in succession matters has locus standi only upon obtaining a limited or full grant of letters of administration; an action brought before the grant is incompetent from inception and is a nullity ab initio.
  • An order of consolidation founded on a petition that is a nullity for want of locus standi is itself illegal.
  • A court may not make a substantive order such as consolidation suo moto at a mention without the parties' consent or hearing submissions.
  • Issues of locus standi and jurisdiction are critical preliminary issues that should be settled before other substantive issues are addressed.

Court orders

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  1. 1.The ruling and order of Nzioka, J. delivered on 11th June, 2012 be set aside
  2. 2.The appellant's Preliminary Objection dated 8th February, 2012 be allowed
  3. 3.Costs of the preliminary objection to the appellant
  4. 4.Costs of this appeal to be borne by the respondent

The bench

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

HO
majority
AS
majority
FS
majority
On appeal from
High Court of Kenya at Mombasa
H.C. Probate & Admin. Cause No. 189 of 2011
Jurisdiction invoked
First appellate jurisdiction under the Law of Succession Act and the Court of Appeal's appellate jurisdiction over High Court succession rulings (statute not expressly named in the judgment)

Relief refused

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Determination of the survivorship question regarding the joint bank accounts

The Court declined to delve into the issue having found the respondent had no locus standi

p. 8

Costs

The preliminary objection was allowed with costs to the appellant, and the costs of this appeal shall be borne by the respondent.

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.

A litigant is clothed with locus standi upon obtaining a limited or a full grant of letters of administration in cases of intestate succession.
p. 5Locus standi in succession matters
… an administrator is not entitled to bring any action as administrator before he has taken out letters of administration. If he does, the action is incompetent as of the date of inception.
p. 5Effect of suing without a grant
Accordingly, we reiterate the view that injunctive reliefs are available in succession causes.
p. 6Availability of injunctions in succession causes
… a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
p. 7Nature of a preliminary objection
issues of locus standi and jurisdiction are critical preliminary issues which ought to have been settled before dwelling into other substantive issues.
p. 7Primacy of jurisdictional objections
In view of the above, we allow the appeal and direct that the ruling and order of Nzioka, J. delivered on 11th June, 2012 be set aside and the appellant’s Preliminary Objection dated 8 th February, 2012 be allowed with costs to the appellant.
p. 8Disposition - final orders

Issues in the judgment

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minor

The memorandum of appeal refers to the ex parte injunction as having been issued on 6th April 2011, whereas the judgment elsewhere records the orders as granted by Maraga, J. on 5th May 2011.

minor

The judgment records the consolidation order as made suo moto by Odero, J. on 13th September, 2011 in one passage and on 13th September/the ruling of 13th September, 2011 in another, while the appellant's memorandum refers to an order dated 12th September, 2011.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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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, "Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] KECA 250 (KLR)", Case Analysis (2014). Civil Appeal No. 30 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/250/eng@2014-11-13

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