Mary Sidi Mendza & another v Andrew Kamau Denis Kubai & another [2021] KECA 943 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the children of a deceased intended appellant can be joined or substituted in his place without letters of administration
They cannot; only duly appointed legal representatives may pursue an appeal for the benefit of a deceased party's estate
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.
Whether Moses was a party to Civil Appeal No. 628 of 2019 such that the applicants could be substituted for him
Moses was not a party to the appeal; the appeal was filed solely by Andrew, so substitution in Moses' place was conceptually impossible
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.
Legal principles established
#- 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
#- 1.The applicants' notice of motion dated 24th August 2020 is struck out
- 2.No orders as to costs, the matter being a family dispute
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.