Kimani v Mugure & 5 others (Civil Appeal 175 of 2017) [2024] KECA 1258 (KLR)
The bottom line
#The Court of Appeal dismissed a widow's succession appeal because she never attached the mandatory death certificate to her petition for representation.
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 trial court erred by deciding issues not pleaded before it, namely the validity of the appellant's alleged Kikuyu Customary Law marriage to the deceased and the status of her children as beneficiaries
- 2.Whether the trial court erred in dismissing the summons for failure to comply with Section 51 of the Law of Succession Act and Regulation 7 of the Probate and Administration Rules, including the mandatory requirement of a death certificate
- 3.Whether the delay of 3 1/2 years in delivering the ruling on the summons violated the appellant's right of access to justice
Key legal issues
#Whether the trial court decided unpleaded issues
The court could not ignore the respondents' denial of the marriage because Regulation 7(1)(f) requires an applicant to disclose the relationship she bore to the deceased; the summons would in any event fail on the mandatory death certificate requirement
Although the validity of the union was not among the orders sought, the 1st and 2nd respondents denied that the applicant was married and thus a proper person to apply for the grant. Regulation 7(1)(f) of the Probate and Administration Rules obliges an applicant to disclose her relationship to the deceased, so the trial court was entitled to address that question. Independently, Regulation 7(2) is mandatory, so the summons could not succeed on that ground alone.
Whether a death certificate is mandatory for a petition for a grant of representation
Regulation 7(2) is couched in mandatory terms; the death certificate or a photocopy of it must be exhibited, and the omission cannot be excused under Article 159(2)(d)
Regulation 7(2) of the Probate and Administration Rules requires that a certificate or photocopy of the certificate of death, or other written evidence of death, be exhibited in the affidavit. This document proves to the court that the deceased is in fact deceased, and it matters not that the fact of death was not controverted. Relying on the Supreme Court's decision in NARC Kenya v IEBC, the Court held that Article 159(2)(d) does not oust obligations to comply with the law or procedural imperatives.
Whether the delay of 3 1/2 years in delivering the ruling violated the appellant's right of access to justice
The delay was regrettable but did not warrant interference because the ruling properly considered the issues and reached a correct conclusion
The Court acknowledged that the 3 1/2 years taken to complete the ruling on the summons was regrettable. However, upon full consideration of the trial court's ruling, it found that the trial court had properly considered the issues before it and arrived at a correct conclusion, so the delay furnished no ground for appellate intervention.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses, and must rule only on the evidence on record without introducing extraneous matters
- The requirement under Regulation 7(2) of the Probate and Administration Rules to exhibit a death certificate or a copy thereof with a petition for a grant of representation is mandatory and cannot be casually set aside on account of Article 159(2)(d) of the Constitution
- Article 159(2)(d) of the Constitution is not a cure-all that ousts the obligation of litigants to comply with the law and procedural imperatives; litigants must substantially comply with substantive and procedural requirements of law
Court orders
#- 1.The appeal fails and is dismissed
- 2.The 1st and 2nd respondents shall have the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Law of Succession Act, leave to appeal granted on 20th January 2017
Relief refused
#Setting aside of the High Court ruling and substitution with an order allowing the summons dated 13th March 2012
The trial court properly considered the issues and arrived at a correct conclusion; Regulation 7(2) mandatorily requires a death certificate and Article 159(2)(d) cannot cure the non-compliance
Costs of the appeal awarded to the appellant
Costs were awarded to the 1st and 2nd respondents instead
Costs
The 1st and 2nd respondents shall have the costs of the appeal. (At first instance, the High Court had ordered each party to bear its own costs in the application.)
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.
On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.
We note that the mandatory nature of the wording in Regulation 7 requires that the appellant provide either the death certificate or a copy thereof. This is the document that proves to the court that the deceased is in fact, deceased. It matters not that the fact of death was not controverted.
while courts shall administer justice without undue regard to procedural technicalities, it still behooves litigants to substantially comply with the substantive and procedural requirements of law in order to actually receive justice.
The upshot is that we are satisfied that there is nothing on record to warrant our interference with the decision of the trial court. In the result, the appeal fails. The 1st and 2nd respondents shall have the costs of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani v Mugure & 5 others (Civil Appeal 175 of 2017) [2024] KECA 1258 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1258/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.