Muthee v Munga & Others & another (Civil Appeal 314 of 2014) [2016] KECA 577 (KLR)
The bottom line
#The Court of Appeal dismissed an administrator's bid to save a deceased's property from auction because she lacked proper legal authority and had hidden other court orders.
What this practically means
#Executive summary
#Key legal issues
#Scope of the limited grant ad colligenda bona and locus standi
The appellant, holding only a grant ad colligenda bona limited to preserving the estate, lacked locus standi to apply for review of the consent orders; such a grant does not authorize filing actions on behalf of a deceased person
Section 67 of the Law of Succession Act and Rule 36 of the Probate and Administration Rules limit a grant ad colligenda bona to collecting and preserving the estate until a further grant is made. Consistent authority, including Otieno v Ougo and Chudasama, holds that a litigant is clothed with locus standi only upon a limited or full grant. The appellant's grant was never confirmed, so she could not move the court on behalf of the estate.
Review or setting aside of consent orders under Order 45
The appellant failed to satisfy the conditions for review; she was aware of the Industrial Court orders yet obtained contradictory injunctions from the High Court without disclosing them, constituting material non-disclosure
Order 45 requires discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason, without unreasonable delay. The appellant instead crossed to another court of concurrent jurisdiction and obtained injunctions contradicting the Industrial Court orders without disclosing them. She was therefore not entitled to the exercise of the court's discretion.
Competence of the appeal in relation to the consent orders
The notice of appeal challenged only the ruling of 11th July 2014, not the consent orders of 11th December 2013, so the grounds attacking the consent orders were not properly before the Court
The notice of appeal specified appeal against the decision of 11th July 2014. Since no appeal was filed against the consent orders of 11th December 2013, the issues of substantive orders made at a mention, breach of natural justice, and attachment of the deceased's property were not before the learned judge and are not before this Court.
First appeal on facts
As a first appellate court the Court re-evaluates evidence but will not interfere with findings of fact absent no evidence, misapprehension, or wrong principles
Relying on Sumaria v Allied Industries and Mwanasokoni v Kenya Bus Service, the Court restated the settled principles governing interference with trial court factual findings and found no error in the learned judge's treatment of the application.
Legal principles established
#- A Court of Appeal will not interfere with findings of fact by a trial court unless based on no evidence, a misapprehension of the evidence, or wrong principles
- A grant of letters of administration ad colligenda bona does not confer authority on its holder to file an action in court on behalf of a deceased person; a suit filed without a full or appropriately limited grant is incompetent from inception
- Any decision sought to be appealed against must be based on a notice of appeal filed against that specific decision; an appeal cannot be used to attack orders against which no notice of appeal was filed
- Courts of concurrent jurisdiction cannot stay each other's orders; material non-disclosure to one court to obtain orders contradicting another court's orders disentitles a party to the discretion of review
- Locus standi is a threshold point of law akin to jurisdiction; lack of capacity to sue renders a suit incompetent
Court orders
#- 1.Appeal dismissed with costs
- On appeal from
- Industrial Court at Nairobi
- Industrial Cause No. 133 (N) of 2008
- Jurisdiction invoked
- First appeal under the Appellate Jurisdiction Act and the Court of Appeal Rules from the Industrial Court, a court of equal status to the High Court under Article 162(2)(a) of the Constitution as read with Section 4(1) of the Industrial Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthee v Munga & Others & another (Civil Appeal 314 of 2014) [2016] KECA 577 (KLR)", Case Analysis (2016). Civil Appeal No. 314 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/577/eng@2016-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.