Emmanuel Mochawa Wawole (Suing as Chairman/Personal Representative of the Estate of the late Victor Elidaima Mochawa (Deceased)) v Harun Kariuki Kamande

The court examined Section 54 and Section 67 of the Law of Succession Act and Rule 36 of the Probate and Administration Rules, and relied on Morjaria v Abdalla, which held that an ad colligenda bona appointment cannot include the right to stand in the shoes of the deceased for instituting an action. The face of the grant showed it was limited to collection and preservation until further representation. Instituting a suit was not among the special purposes indicated, so the Plaintiff was not a legal representative and lacked capacity; the suit was a nullity for want of a competent party.

The defence filed a statement but called no witness, leaving the defence as mere allegations. Although no eyewitness testified, the Police Abstract established the occurrence of the accident, the vehicle involved and the fatality, and the Death Certificate recorded death from a road traffic accident. Applying res ipsa loquitur as explained in Nandwa v Kenya Kazi Limited citing Barkway v South Wales Transport, negligence could be inferred in the absence of any explanation from the Defendant, who controlled the vehicle.

Because the deceased's earnings could not be precisely ascertained from the banking slips produced, the court adopted a global award for loss of dependency following the multiplier-approach guidance in Mwanzia v Ngalali Mutua as quoted in Albert Odawa v Gichimu Gichenji. Special damages were considered specifically proved by receipts. However, all these figures were expressed conditionally ('would have awarded') and no damages were actually awarded since the suit was struck out for want of locus standi.