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Case Brief · caselaw.co.ke
Court of AppealStruck OutCivil Application No. 300 of 2017

Elizabeth Wanjiru Mburu v Johnson Kamau Njunguna [2021] KECA 706 (KLR)

Court of Appeal
16 April 2021
1,168 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot sue to protect a deceased person's property unless you hold a grant of letters of administration.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal (Nambuye, Sichale and Kantai, JJ.A.) delivered at Nairobi on 16th April 2021 on an uncontested Notice of Motion dated 20th December 2017 by Elizabeth Wanjiru Mburu seeking a temporary injunction against Johnson Kamau Njunguna over Limuru/Bibirioni/138, pending the hearing of her intended appeal against a ruling of R.E. Ougo, J. dated 10th November 2017 in Nairobi Civil Appeal No. 12 of 2006. The motion was brought under Article 40 of the Constitution, Order 40 of the Civil Procedure Rules and sections 3, 3A and 63(e) of the Civil Procedure Act. The court held that those provisions, save Article 40, do not govern applications before it, but salvaged the motion as one under Rule 5(2)(b) of the Court of Appeal Rules, relying on Rule 1(2), sections 3A and 3B of the Appellate Jurisdiction Act and Article 159's non-technicality principle. The decisive issue was locus standi: the applicant had been substituted for Sarah Wangari Kuria to prosecute a revocation of grant appeal, but neither of them ever exhibited a grant of letters of administration in respect of the estate of Joshua Mburu or of Sarah. Since the Law of Succession Act confers the power to litigate for a deceased's estate only on personal representatives holding a full grant or ad colligenda bona, the applicant had no standing. The court accordingly struck out the application with no order as to costs, the application being undefended.

Key legal issues

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01

Locus standi to champion a deceased person's rights in appellate proceedings

Holding

The applicant, having exhibited no grant of letters of administration in respect of either Joshua Mburu or Sarah Wangari Kuria, had no locus standi to prosecute the intended appeal.

Reasoning

The Law of Succession Act defines an administrator as a person to whom a grant has been made, and a personal representative as an executor or administrator. Sections 82 and 83 vest in personal representatives the power to litigate on behalf of estates, whether holding a full grant or ad colligenda bona. Neither Sarah Wangari Kuria nor the applicant who stepped into her shoes exhibited proof of holding such a grant, so the High Court was right to sustain the objection and the application before the Court of Appeal could not stand.

p. 1
02

Duty of the court to salvage wrongly framed applications under Article 159 and the overriding objective

Holding

The court declined to strike out the application for want of form or for citing wrong provisions, but determined it on its merits by reference to Rule 5(2)(b) of the Court of Appeal Rules.

Reasoning

Rule 1(2) of the Court's Rules, sections 3A and 3B of the Appellate Jurisdiction Act embodying the overriding objective, and Article 159's non-technicality principle required the court to refrain from striking out an application merely because the applicant cited the wrong access provisions (Article 40 and Order 40) for relief properly accessible under Rule 5(2)(b). However, this salvaging exercise could not cure the substantive defect of locus standi.

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Legal principles established

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  • Only a personal representative holding a grant (full or ad colligenda bona) may litigate on behalf of a deceased person's estate; a person without such a grant lacks locus standi to pursue a deceased's appellate rights.

Court orders

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  1. 1.The application for temporary injunction dated 20th December 2017 is struck out
  2. 2.No order as to costs, the application being undefended
On appeal from
High Court of Kenya
Nairobi Civil Appeal No. 12 of 2006
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (as corrected by the court from the cited provisions), with the saving inherent power in Rule 1(2), sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Elizabeth Wanjiru Mburu v Johnson Kamau Njunguna [2021] KECA 706 (KLR)", Case Analysis (2021). Civil Application No. 300 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/706/eng@2021-04-16

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