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Court of AppealDismissedAppeal from Succession Causes 1940 of 1996 consolidated with 1860 of 1996

Kubai v Kubai (Civil Appeal 628 of 2019) [2024] KECA 845 (KLR)

Court of Appeal of Kenya
12 July 2024
3,980 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed a grandson could not contest his grandfather's estate because his Power of Attorney only covered his father's estate, and the Will's validity was settled.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal against a ruling of A. Ongeri, J. dated 2nd August 2019 confirming a Grant of Probate issued on 19th December 2013 to Christine Gakuhi Kubai, the widow of the deceased, based on a Will dated 19th January 1991. The deceased died testate in 1996 survived by five wives. Two succession causes were consolidated, and Musyoka, J. found the Will valid and the respondent a wife of the deceased, issuing probate. The appellant, a grandson, subsequently made repeated applications, including a Summons for Revocation of Grant, all of which failed in the High Court. Allowing the appeal to be canvassed by written submissions, the Court of Appeal condensed the 20 grounds into 6 and framed two issues: the appellant's status as a beneficiary and locus standi, and whether the Will's validity could be challenged at that stage. The Court held that the general Power of Attorney donated to the appellant by his mother was limited to litigation concerning his deceased father's estate and did not extend to the grandfather's estate; nor could a Power of Attorney substitute a grant of representation. As a dependant, the appellant had been provided for under his father's house, and his claim of inadequate provision was vague. On the Will, the Court noted that the 2013 judgment had never been appealed, that successive judges had declined to revisit its validity, and that the deceased's own children had not challenged its authenticity. The Court accordingly dismissed the appeal with costs to the respondent, affirming the ruling below and the confirmation of the probate.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant is a beneficiary of the deceased's estate and, if not, whether he has locus standi to contest the proceedings relating to the estate
  2. 2.Whether the validity of the Will can be challenged at this stage, there having been no appeal against the judgment of Musyoka, J. of 19th December 2013

Key legal issues

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01

Locus standi of the appellant

Holding

The appellant, a grandchild claiming through a general Power of Attorney from his mother, had no locus standi.

Reasoning

The Power of Attorney donated by the appellant's mother, as administratrix of the father's estate, was limited to legal actions touching that estate; it did not extend to the grandfather's estate. Further, a Power of Attorney cannot substitute a grant of representation, and as a dependant the appellant was already provided for under his father's house. Dependency is a question of fact at the time of death.

p. 5
02

Whether the validity of the Will can be challenged at this stage

Holding

It cannot; the Will was found valid by Musyoka, J. and that judgment was never appealed.

Reasoning

Musyoka, J. found the handwritten Will satisfied section 11 of the Law of Succession Act and that the deceased's own children did not deny his writing or signature. Subsequent review attempts were dismissed, and successive judges declined to revisit the issue. Only the appellant, who is not a beneficiary, sought to disturb the deceased's wishes through repeated applications.

p. 7
03

Sufficiency of provision made for the appellant's father's house

Holding

The claim of inadequate provision was vague; the Will allocated 5 acres to each son and daughter of the relevant houses.

Reasoning

The Will provided for the houses of Sofia Muthoni and Rebecca Wangechi, allocating land and education to their children. The appellant failed to identify which house his father belonged to and did not state what he contended his father should have received, rendering the complaint of inadequate provision unestablished.

p. 6

Legal principles established

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  • A Power of Attorney does not substitute a grant of representation, and a donee of a Power of Attorney limited to one estate cannot use it to litigate over a different estate.
  • Where no appeal has been lodged against a probate judgment, the validity of the Will cannot be challenged in later applications before the High Court.
  • On a first appeal, the Court re-appraises the evidence afresh but must give due allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

Wrote the judgment

On appeal from
High Court of Kenya
Succession Cause No. 1940 of 1996 consolidated with Succession Cause No. 1860 of 1996
Jurisdiction invoked
First appeal to the Court of Appeal, exercising re-appraisal jurisdiction under rule 31(1) of the Court of Appeal Rules, 2022
Consolidated with
Succession Cause No. 1940 of 1996 consolidated with Succession Cause No. 1860 of 1996

Relief refused

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Setting aside the ruling and order of 2nd August 2019

The appeal fails on the issue of locus standi; the appellant lacked capacity to bring the proceedings

p. 6

Revocation of the Grant of Probate issued on 19th December 2013

The judgment of Musyoka, J. has never been appealed and the Will's validity cannot be collaterally challenged

p. 7

Challenging the validity of the Will at this stage

The High Court was not the proper forum to challenge the Will absent an appeal against the 2013 judgment

p. 7

Costs

The appeal was dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, we make the inescapable conclusion that the appellant did not have the locus standi to commence any proceedings as the Power of Attorney donated to him was limited in scope of its application.
p. 6Locus standi - scope of Power of Attorney
in the absence of an appeal against the decision of Musyoka, J., the High Court was not the proper forum to challenge any further issues regarding the validity of the deceased's Will.
p. 7Finality of unappealed probate judgment
The term locus standi means a right to appear in Court and, conversely, as is stated in Jowitt's Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.
p. 5Definition of locus standi
We accordingly dismiss it with costs to the respondent.
p. 7Disposition

Issues in the judgment

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minor

The judgment states the Summons for Revocation of Grant is dated 11th February 2019 in the narrative, but ground (ii) of the collapsed grounds of appeal describes it as dated 11th February 2013.

minor

The judgment refers to 'Article 22 of the Constitution of Kenya 2020' although the Constitution in force is the Constitution of Kenya, 2010.

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, "Kubai v Kubai (Civil Appeal 628 of 2019) [2024] KECA 845 (KLR)", Case Analysis (2024). Appeal from Succession Causes 1940 of 1996 consolidated with 1860 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/845/eng@2024-07-12

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