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Court of AppealStruck OutCivil Appeal No. 196 of 2002· [2014] KECA 776 (KLR)

Public Trustee v Githinji Mararo & 4 others (Civil Appeal 196 of 2002) (Civ) [2014] KECA 776 (KLR)

Court of Appeal of Kenya
27 February 2014
1,920 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal struck out an attempt to revive a dead appeal, confirming that beneficiaries cannot litigate for an estate without the court's formal sanction.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Githinji, Maraga and Musinga, JJ.A) dealt with an application to reinstate Civil Appeal No. 196 of 2002, which had been dismissed on 19th February 2009 when both counsel declined to proceed, and for extension of time to file a notice of cross-appeal. Although lodged in the name of the Public Trustee, administrator of the estate of Kahugi Gituro, the application was in truth brought by two sons of the deceased's third house, Gituro Kahugi Gituro and Stephen Mungai Kahugi, who wished to cross-appeal against the High Court judgment of Mitey, J. of 15th March 2001, which awarded the deceased's family 65 acres of Maryvale Farm and 16 acres to the respondents. The court identified four procedural hurdles: the application was not brought by the original appellants, who no longer wished to appeal and whose dispute had been resolved through the amended certificate of confirmation of grant in Succession Cause No. 504 of 1987; a cross-appeal cannot exist independently of an appeal under Rules 93 and 97 of the Court of Appeal Rules, 2010, and the right was lost on dismissal; the applicants lacked capacity, having no formal court sanction to represent the estate notwithstanding the Public Trustee's non-objection; and the confirmed grant had superseded the intended cross-appeal. The application was struck out with costs to the respondents and to the 1st, 2nd and 4th houses, payable by the two applicants. The ruling binds lower courts on the inseparability of cross-appeals from existing appeals and on the need for formal court authority for beneficiaries to litigate for an estate.

Key legal issues

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01

Who may bring an application for reinstatement of a dismissed appeal

Holding

Only the original appellants whose appeal was dismissed could seek reinstatement; the applicants, being beneficiaries, could not, and the appeal could not be revived to force unwilling appellants to litigate

Reasoning

The appeal was dismissed on 19th February 2009 because both counsel declined to proceed. The respondents had since accepted the 16 acres awarded by the High Court, and the certificate of confirmation of grant had been amended to reflect this, ending the dispute. The court held it lacked power to compel them to continue with the appeal.

p. 2
02

Existence of a cross-appeal independently of an appeal

Holding

Rule 93 of the Court of Appeal Rules, 2010 requires a notice of cross-appeal to be filed in an existing appeal; only Rule 97 permits an independent cross-appeal upon withdrawal of the appeal, which did not occur here

Reasoning

The Public Trustee had leave to appeal out of time but filed neither an appeal nor a cross-appeal. Once the respondents' appeal was dismissed, the right to file a cross-appeal was extinguished. The intended cross-appeal was also rendered futile by the amended and confirmed grant in the succession cause.

p. 3
03

Locus standi and capacity of beneficiaries to litigate for an estate

Holding

The applicants, sons of the 3rd wife, were not administrators; the Public Trustee as corporation sole had power to sue and be sued, and beneficiaries required formal court sanction to represent the estate

Reasoning

Section 25(1) of the Public Trustee Act makes the Public Trustee a corporation sole with power to sue and be sued; section 82(a) of the Law of Succession Act vests enforcement of causes of action in the personal representative. An application by the two men to be appointed co-administrators was abandoned, so no court authority existed. The administrator's non-objection was insufficient.

p. 3
04

Futility of the intended cross-appeal

Holding

The amendment of the certificate of confirmation of grant adjudging the respondents entitled to 16 acres superseded the intended cross-appeal, rendering it futile

Reasoning

The rectified certificate of confirmation in Succession Cause No. 504 of 1987 gave the original appellants 16 acres from Maryvale Farm, part of the deceased's estate. That adjudication disposed of the substance of the dispute, so reviving the appeal and permitting a cross-appeal would serve no purpose.

p. 3

Legal principles established

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  • A notice of cross-appeal can only be filed in an existing appeal; a cross-appeal cannot exist independently of an appeal except where the appeal is withdrawn under Rule 97
  • Neither a party nor the court can compel a litigant to pursue an appeal that has been dismissed, particularly where the judgment below has been executed or superseded
  • Non-objection by an administrator of an estate does not confer capacity on beneficiaries to bring proceedings for the estate without prior formal sanction of the court

Court orders

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  1. 1.The application for reinstatement of the dismissed appeal and for extension of time to file a notice of cross-appeal is struck out
  2. 2.Costs awarded to both the respondents and to the 1st, 2nd and 4th houses, to be paid by the two applicants

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 93
  • Court of Appeal Rules, 2010Rule 97(1)
  • Court of Appeal Rules, 2010Rule 97(2)
  • Public Trustee ActSection 9
  • Public Trustee ActSection 25(1)
  • Public Trustee ActSection 25(2)
  • Public Trustee ActSection 25(3)
  • Public Trustee ActSection 25(4)
  • Law of Succession ActSection 76
  • Law of Succession ActSection 82(a)
  • Civil Procedure RulesOrder 31(1)
On appeal from
High Court of Kenya at Nairobi
H.C.C.A No. 221 of 1997
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over Civil Appeal No. 196 of 2002 and applications for reinstatement and extension of time under the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Public Trustee v Githinji Mararo & 4 others (Civil Appeal 196 of 2002)  (Civ) [2014] KECA 776 (KLR)", Case Analysis (2014). Civil Appeal No. 196 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/776/eng@2014-02-27

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