Martha Ndiro Odero (suing as the administrator and Personal representative of the estate of Willy Patrick Ochieng Ndiro (Deceased) v Come Cons Africa Limited [2015] KECA 405 (KLR)

The proviso to section 47 and section 48(1) of the Law of Succession Act empower resident magistrates appointed by the Chief Justice to issue grants, and proviso (iii) to section 49 permits temporary grants for collection of assets in cases of apparent urgency. The exclusive jurisdiction of the High Court applies only where both courts are available, and Migori had no High Court station at the material time. There was no evidence the magistrate lacked appointment or that the grant was issued without jurisdiction.

A limited grant ad colligenda bona is issued under section 67(1) of the Law of Succession Act and Rule 36(1) of the Probate and Administration Rules for collection and preservation of assets, including filing suit, without the requirements attending a full grant. Because the grant clothed the appellant with capacity to claim damages rather than to administer the estate, the value-of-estate limits in section 48(1) were irrelevant. The trial judge's requirement of two administrators was misplaced.

No party raised the question of the magistrate's jurisdiction; the judge raised it herself in her judgment but cited no basis or evidence for it. Because the issue was decisive of the appellant's claim, natural justice required that she be given an opportunity to be heard on it before it was determined against her.

The burden of proof lay on the appellant. Her witness, the passenger in the deceased's vehicle, gave unchallenged testimony that the respondent's driver turned onto Ngong Road without stopping, causing the collision. The death certificate confirmed death from multiple injuries in a motor vehicle accident. The respondent adduced no evidence, so the appellant discharged her burden and the respondent could not escape liability.

The trial judge quantified damages under the Fatal Accidents Act but awarded nothing under the Law Reform Act without assigning any reason. The court noted that awards for loss of expectation of life under that head are deliberately kept conventional and low for public-interest reasons, but they remain an entitlement of the estate for loss of life. The court included a total of Shs.260,000/= under special damages and the Law Reform Act in its disposition.

The deceased was a 32-year-old military officer earning a net monthly salary of Shs.14,000/=, two-thirds of which was expended on his three children. Applying a multiplier of 20 years, accounting for the vicissitudes of life, the court affirmed the trial judge's computation of Shs.2,240,000/= under the Fatal Accidents Act and Shs.60,000/= in special damages, which was not disputed.