Elijah Nderitu Gachaga v Francis Gakuu Gachaga & 2 others [2019] KEELC 773 (KLR)

Section 54 of the Law of Succession Act and section 67(1), read with Rule 36 of the Probate and Administration Rules, confine an ad colligenda grant to collection and preservation of assets of a perishable or precarious nature where a full grant cannot be made at once. Filing suit requires either a full grant or a limited grant ad litem under paragraph 14 of the Fifth Schedule. The wording of the grant is decisive: the Plaintiff's grant contained no language permitting institution of suit and there was no evidence of rectification. Following Morjaria v Abdalla and Julian Adoyo Ongunga, the Plaintiff was not clothed with locus, rendering all proceedings a nullity per Macfoy v United Africa Co.

Applying Mukhisa Biscuit and Oraro v Mbaja, the court held that the question whether the Plaintiff's grant empowered him to sue was determinable from the pleadings and the record without evidence. Although the facts in plaint and defence were disputed, the objection itself rested purely on the terms of the grant, a matter of law capable of disposing of the suit without calling for disputed facts or judicial discretion.

The Plaintiff argued that sections 47 and 48 of the Law of Succession Act vest jurisdiction over grants in the High Family Court. The court held the objection did not seek to strike out, impugn or revoke the grant but raised the antecedent question of whether the Plaintiff had capacity to sue in the ELC. Characterised that way, the court's jurisdiction was not ousted, though it noted revocation of the grant belongs to the Succession Court.

The Plaintiff urged the court to elect between the two Court of Appeal decisions. The court found no conflict: in Morjaria the grant was expressly limited to filing an appeal and substitution was allowed in an ongoing case; in Owade Ogwang a chamber summons had already been allowed by a judge of concurrent jurisdiction. Both benches reiterated the point of law that ad colligenda grants do not clothe a party with locus to sue unless specifically stated in the grant.