Kubai v Kubai (Civil Appeal 628 of 2019) [2024] KECA 845 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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
#Locus standi of the appellant
The appellant, a grandchild claiming through a general Power of Attorney from his mother, had no locus standi.
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.
Whether the validity of the Will can be challenged at this stage
It cannot; the Will was found valid by Musyoka, J. and that judgment was never appealed.
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.
Sufficiency of provision made for the appellant's father's house
The claim of inadequate provision was vague; the Will allocated 5 acres to each son and daughter of the relevant houses.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
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
#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
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
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
Costs
The appeal was dismissed with costs to the respondent.
Quotable passages
#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.
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.
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.
We accordingly dismiss it with costs to the respondent.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.