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Court of AppealStruck OutCivil Appeal (Application) No. 628 of 2019· [2021] KECA 943 (KLR)

Mary Sidi Mendza & another v Andrew Kamau Denis Kubai & another [2021] KECA 943 (KLR)

Court of Appeal of Kenya
19 February 2021
1,490 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out an application by children of a deceased man because only appointed estate administrators, not beneficiaries, can continue his legal case.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Okwengu, Asike-Makhandia and Kiage, JJ.A) dated 19th February 2021 on a notice of motion dated 24th August 2020 filed in person by Mary Sidi Mendza and Jane Njeri Ngeru, children of the late Moses Mendza Kibuthu Kubai. The motion, arising from a long-running succession dispute over the estate of Fredrick Polwarth Kibuthu Kubai, sought to enjoin the applicants as interested parties in Civil Appeal No. 628 of 2019, to set aside the judgment of Ongeri, J of 2nd August 2019 confirming the grant of probate to Christina Gakuhi Kubai, and to have legal representation put in place in place of the deceased Moses. The court found that Andrew Kamau Denis Kubai alone filed Civil Appeal No. 628 of 2019, that Moses was never a party to it, and that although Moses had given notice of appeal and apparently obtained leave on 22nd November 2019, he never filed an appeal before his death in June 2020. Applying Trouistik Union International v Mbeyu, the court held that the applicants could only pursue any appeal for Moses' benefit if appointed legal representatives or administrators of his estate, which they had not done. Lacking locus standi, they could not be substituted for Moses nor challenge the High Court ruling merely as his children and beneficiaries. The motion was struck out, with no orders as to costs given the family nature of the dispute.

Key legal issues

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01

Whether the children of a deceased intended appellant can be joined or substituted in his place without letters of administration

Holding

They cannot; only duly appointed legal representatives may pursue an appeal for the benefit of a deceased party's estate

Reasoning

The court traced the history: Moses died after Andrew filed Civil Appeal No. 628 of 2019, and Moses had never filed an appeal of his own despite a notice of appeal and leave granted on 22nd November 2019. Relying on Trouistik Union International v Mbeyu, the court held that the applicants could only pursue any appeal for Moses' benefit if appointed legal representatives of his estate. Absent such appointment, they had no locus to be substituted or to challenge the ruling of 2nd August 2019.

p. 3
02

Whether Moses was a party to Civil Appeal No. 628 of 2019 such that the applicants could be substituted for him

Holding

Moses was not a party to the appeal; the appeal was filed solely by Andrew, so substitution in Moses' place was conceptually impossible

Reasoning

Civil Appeal No. 628 of 2019 was filed by Andrew on 18th December 2019, before Moses' death. The applicants' counsel argued Moses had leave to appeal from the ruling of 22nd November 2019, but the court noted confusion in that ruling's heading, concluded it was Moses who was granted leave, and observed he never filed any appeal. Since Moses was never a party to Andrew's appeal, the applicants could not be substituted as parties in his place in that appeal.

p. 3

Legal principles established

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  • On the death of a party during the pendency of proceedings, only a duly appointed legal representative or administrator of the deceased's estate may pursue or continue the cause for the benefit of the estate; mere children or beneficiaries of the deceased have no locus standi to be substituted in his place
  • An applicant who has not demonstrated appointment as administrator or legal representative of a deceased party's estate cannot be substituted for that party, nor challenge the ruling below merely by reason of being a child or beneficiary of the deceased

Court orders

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  1. 1.The applicants' notice of motion dated 24th August 2020 is struck out
  2. 2.No orders as to costs, the matter being a family dispute

Authorities

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Legislation

  • Law of Succession ActSection 71
  • Law of Succession ActSection 26
  • Probate and Administration RulesRule 39
  • Probate and Administration RulesRule 40
  • Court of Appeal RulesRule 77

Cases cited (1)

  • Trouistik Union International & Anor v Mbeyu & Anor
    [1993] KLR 230
On appeal from
High Court of Kenya, Family Division at Nairobi
H.C.C.C No. 1940 of 1996
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal under the Court of Appeal Rules to entertain an application (notice of motion) in a pending civil appeal; the substantive appeal arises from the High Court ruling of 2nd August 2019

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, "Mary Sidi Mendza & another v Andrew Kamau Denis Kubai & another [2021] KECA 943 (KLR)", Case Analysis (2021). Civil Appeal (Application) No. 628 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/943/eng@2021-02-19

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