Public Trustee v Githinji Mararo & 4 others (Civil Appeal 196 of 2002) (Civ) [2014] KECA 776 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Who may bring an application for reinstatement of a dismissed appeal
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
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.
Existence of a cross-appeal independently of an appeal
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
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.
Locus standi and capacity of beneficiaries to litigate for an estate
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
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.
Futility of the intended cross-appeal
The amendment of the certificate of confirmation of grant adjudging the respondents entitled to 16 acres superseded the intended cross-appeal, rendering it futile
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.
Legal principles established
#- 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
#- 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.Costs awarded to both the respondents and to the 1st, 2nd and 4th houses, to be paid by the two applicants
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muchanga Investments Limited v Telesource.com Limited & 6 others[2026] KECA 1532 (KLR)31 Jul 2026
Cite this brief
#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.