Awadh (Holder of General Power of Attorney for Burka Ahmed Salim) v Ngala (Sued as administrator of the Estate of Stephen EC Ngala)

4. In the Judgment delivered on 22nd January 2021, the learned trial Magistrate struck out the Appellant’s suit on the basis that, although the Appellant had pleaded that the Respondent was the administrator of the deceased’s estate and had included a grant of letters of administration in his list of documents, the grant was not annexed to the list of documents led in support of the plaint. The trial court consequently found that the Appellant had failed to establish the Respondent’s legal capacity to be sued, which rendered the suit a non-starter. 5. Aggrieved by that decision, the Appellant lodged an appeal to the High Court, contending that the learned trial Magistrate was in error in law and in fact in determining the suit prematurely, failing to consider the application dated 16th September 2019, and in striking out the suit despite the existence of letters of administration allegedly annexed to the supporting adavit. The Appellant therefore sought for the setting aside of the impugned Judgment and an order that the suit be heard and determined on its merits. 6. Upon consideration of the grounds and record of appeal, the supplementary record, and the submissions led by the parties, the Environment and Land Court sitting as a rst appellate court begun by considering whether the matter before the trial Magistrate’s court on 24th November 2020 was for hearing of the Appellant’s application dated 16th September 2019, or for hearing of the main suit. Upon interrogating the lower court proceedings, the court found that the record was clear and unequivocal that the matter was xed for hearing of the substantive suit. The court observed that the Appellant was present in court, he was sworn in, and testied as PW1, adopted the contents of the plaint and the documents led, and thereafter closed his case. The court rejected the Appellant’s contention that the trial magistrate determined the suit without a proper hearing, or that the matter was meant to proceed by way of application. 7. On whether the Appellant proved his case, the court restated the principle that, even where a defendant does not enter appearance or le a defence, the burden of proof remains with the plainti. The Appellant was required on a balance of probabilities to establish his claim and prove all material facts, including the legal capacity of the Respondent to be sued as the administrator of the estate of the deceased. 8. On whether the Appellant had demonstrated that the Respondent was duly appointed as the administrator of the estate of Stephen E. C. Ngala (deceased), the court found that, although the Appellant’s list of documents made reference to a grant of letters of administration issued in Succession Cause No. 21 of 2015, upon scrutiny of the documents annexed to the list led in the lower court, no such grant was produced; that, while a copy of an alleged grant appeared in the supplementary record of appeal, those documents were not part of the original record before the trial court, and no explanation had been oered for their absence at the time of hearing. The learned Judge held that documents attached to an adavit in support of an interlocutory application did not cure omissions of documents led in support of the main suit; that it was incumbent upon the Appellant to comply with the Civil Procedure Rules by ling and serving a complete and accurate list of documents in support of the plaint, or to seek leave of the court to le supplementary documents where necessary. The failure to do so was fatal to the Appellant’s case on the issue of capacity. 9. In conclusion, the learned Judge found that the learned trial magistrate rightly held that there was no evidence before the court establishing that the Respondent had the legal capacity to be sued as the administrator of the deceased’s estate; that capacity to sue or be sued was a fundamental issue that can be raised at any stage of proceedings, and that the trial court was entitled to strike out the suit upon nding that the Appellant had failed to prove that the deceased was properly represented. It was further https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1689/eng@2026-09-25 2

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held that striking out of the suit did not amount to a determination on the merits, and neither did it occasion a miscarriage of justice. 10. Consequently, the learned Judge found that the appeal lacked merit and upheld the decision of the trial magistrates’ court. 11. Aggrieved, the Appellant has led an appeal to this Court on grounds that: the learned judge misapprehended the law in failing to be guided by Order 2 Rule 11 (1), (2), (3) and (4) of the Civil Procedure Rules 2010, regarding the eect of allegations made in pleadings and not denied; in failing to be guided by Section 61 of the Evidence Act with regard to facts pleaded and not denied; in failing to consider the eect of Order 11 Rules 3 and 7 of the Civil Procedure Rules, 2010 thereby occasioning a miscarriage of justice; in failing to be guided by Order 42 Rule 13 of the Civil Procedure Rules, 2010; and in failing to analyse the facts and law leading to the wrong conclusions. 12. When the appeal came up for hearing on a virtual platform, there was no appearance for the Appellant despite his counsel being served, even though there were written submissions led on his behalf. For their part, learned counsel Mr. Asige appeared for the Respondent and relied on their written submissions. 13. In their submissions, the Appellant submitted that the appeal arises from the improper striking out of the Appellant’s suit on purely technical grounds, thereby denying the Appellant the right to have his case heard and determined on the merits. It was submitted that the Appellant had pleaded that the Respondent was the legal administrator of the estate of the deceased, and that the Respondent, despite being served, neither entered appearance nor led a defence. Counsel argued that, by virtue of Order 2 Rule 11 (1), (2), (3) and (4) of the Civil Procedure Rules, 2010, the allegations pleaded and not denied ought to have been deemed as admitted. It was contended that the learned Judge was wrong in holding that the Appellant was required to strictly prove a fact that had, by operation of law, been admitted. 14. Counsel further submitted that the learned Judge misapprehended Section 61 of the Evidence Act, which provides that admitted facts need not be proved. It was argued that, since the Respondent did not deny that he was the administrator of the deceased’s estate, the court ought not to have required the Appellant to tender further proof of that fact at the Judgment stage. Reliance was placed on the case of Shimega vs Malesi [2024] KEHC 7830 (KLR) and this Court’s decision in Choitram vs Nazari [1984] KLR 327, for the proposition that admissions may be express or implied, and that admitted facts require no proof. 15. Counsel also faulted the learned Judge for failing to consider the eect of non-compliance with Order 11 Rules 3 and 7 of the Civil Procedure Rules, 2010, arguing that the suit proceeded to hearing without case management, pre-trial directions, or determination of the pending interlocutory application dated 16th September 2019. It was submitted that the procedural lapses occasioned a miscarriage of justice, particularly given that the Appellant was a lay litigant acting in person at the trial court; that, even assuming the issue of capacity was unresolved, the failure to formally produce letters of administration was not fatal to the suit and should have been cured by an amendment. The case of DT Dobie & Co. (K) Ltd vs Muchina [1982] KLR 1, was relied upon to support the principle that suits should be sustained rather than being terminated summarily, particularly where defects are curable. 16. The Appellant also invoked Order 1 Rule 9 of the Civil Procedure Rules, 2010, to contend that no suit should be defeated by reason of misjoinder or non- joinder of parties, and that the court had discretion to order substitution or amendment instead of striking out the suit. 17. In their written submissions, counsel for the Respondent argued that the High Court properly exercised its jurisdiction and correctly upheld the decision of the trial court; that, although the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1689/eng@2026-09-25 3

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Appellant relied on Order 2 Rule 11 of the Civil Procedure Rules, the provision did not relieve a plainti of the burden of proof; that pleadings, even if uncontroverted, do not amount to proof of the facts alleged. The Respondent contended that the Appellant failed to prove that the Respondent had the legal capacity to be sued as the administrator of the deceased’s estate; that, despite listing a grant of letters of administration, it was produced at the hearing of the suit. Counsel submitted that this failure rendered the suit a non-starter, given that capacity is a jurisdictional issue that can be raised at any stage in the proceedings. 18. Counsel submitted that Section 61 of the Evidence Act was not applicable, as there was no express or implied admission by the Respondent, either by agreement, by pleadings, or at the hearing; that the deemed admissions under pleadings cannot override the statutory requirement of proof, particularly where capacity to sue or be sued is in issue. 19. With respect to Order 11 Rules 3 and 7 of the Civil Procedure Rules, counsel submitted that the Appellant failed to demonstrate how non-compliance with case management procedures prejudiced his case or altered the outcome, and that reliance on Order 42 Rule 13 of the Rules, was misplaced; that, therefore, the rst appellate court properly upheld the striking out of the suit for want of proof of capacity and arrived at the correct decision. 20. Before considering the issues raised in this appeal, it is important to restate the scope of this Court's jurisdiction. This being a second appeal, the mandate of the Court is limited to consideration of matters of law only. The Court will not ordinarily interfere with concurrent ndings of fact made by the two courts below, unless it is demonstrated that the courts considered matters they ought not to have considered, failed to consider matters they ought to have considered, or that their conclusions are plainly perverse. 21. As stated by this Court in the case of Kenya Breweries Ltd vs Godfrey Odoyo [2010] eKLR: This being a second appeal, only matters of law may be raised. The Court of Appeal will not interfere with concurrent ndings of fact by the two courts below unless it is shown that they considered matters they should not have considered, or failed to consider matters they should have considered, or that looking at the entire decision, it is plainly perverse." 22. Having considered the record of appeal, the Judgment of the Environment and Land Court, the grounds of appeal and the submissions by counsel, the broad issue for determination is whether the learned Judge of the Environment and Land Court fell into error in law in arming the decision of the trial court, and whether the grounds advanced by the Appellant disclose any basis upon which this Court may properly interfere with the concurrent ndings of the two courts below. To address the above question, the following issues arise for consideration: i. Whether the learned Judge failed to apply Order 2 Rule 11 of the Civil Procedure Rules and Section 61 of the Evidence Act by requiring the Appellant to prove the Respondent's legal capacity to be sued notwithstanding the Respondent's failure to enter appearance or le a defence. ii. Whether the learned Judge was wrong in nding that the Appellant had failed to establish that the Respondent had the legal capacity to be sued as the administrator of the estate of the deceased. iii. Whether the alleged non-compliance with Order 11 Rules 3 and 7 and Order 42 Rule 13 of the Civil Procedure Rules occasioned a miscarriage of justice so as to warrant interference with the decision by this Court. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1689/eng@2026-09-25 4

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iv. Whether the learned Judge properly discharged the duty of a rst appellate court in reevaluating the evidence and arriving at the conclusion that the trial court's decision ought to be upheld. 23. The rst and second issues are intertwined and shall therefore be considered together. The Appellant's case is that, having pleaded that the Respondent was the administrator of the deceased’s estate, and the Respondent having failed to enter appearance or le a statement of defence, the Respondent’s capacity stood admitted by operation of Order 2 Rule 11 of the Rules, and that, by virtue of Section 61 of the Evidence Act, admitted facts do not require to be proved. 24. There is no dispute that the Respondent neither entered appearance nor led a defence to the Appellant's claim. Equally undisputed is the fact that the matter proceeded by way of formal proof, at which the Appellant testied and adopted the documents led in support of the plaint. The question that arises is whether the Respondent's failure to controvert the pleadings eectively dispensed with the Appellant's obligation to prove that the Respondent had the legal capacity to be sued as administrator of the estate of the deceased. 25. It is trite that even in undefended proceedings, the legal burden of proof remains with the plainti. Sections 107 and 108 of the Evidence Act places that burden upon the party who desires the court to give judgment as to any legal right or liability dependent upon the existence of facts which he asserts. 26. In the case of Kirugi and Another vs Kabiya & 3 others [1987] KLR 347 this Court held: The burden was always on the Plainti to prove his case on a balance of probabilities even if the case was heard as formal proof…” 27. Additionally, this Court in the case of Charterhouse Bank Limited (Under Statutory Management) vs Frank N. Kamau [2016] eKLR held that: “ We would therefore venture to suggest that before the trial court can conclude that the plainti’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satised that the plainti has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plainti or his witnesses to cross- examination and the evidence adduced by the plainti is thereby thoroughly discredited, judgment cannot be entered for the plainti merely because the defendant has not testied. The plainti must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plainti is not entitled to judgement merely because the defendant has not testied… In the appeal before us, the evidence by the appellant’s witness was subjected to cross- examination and, with respect, we agree with the respondent that taken as a whole, it did not prove the case of breach of contract pleaded by the appellant on a balance of probabilities. If anything, the evidence on record shows that in its dealings with the respondent, the appellant acted in a very casual and cavalier manner.” 28. The above excerpt is clear that the mere fact that evidence is uncontroverted does not automatically entitle a claimant to have judgment entered in his favour, unless the evidence tendered establishes the claim on a balance of probabilities. More importantly, capacity to sue or be sued as the representative of a deceased person’s estate is fundamental requirement. Such capacity is derived from a grant of representation issued under the Law of Succession Act. It is therefore incumbent upon a party https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1689/eng@2026-09-25 5

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asserting that another has been sued in a representative capacity to place before the court the requisite documentation proving such capacity. 29. Both the Environment and Land Court and the trial Magistrate’s court found that, although the Appellant's list of documents referred to a grant of letters of administration, the actual grant was not produced during the hearing. The nding has not been shown to have been based on no evidence or on a misapprehension of the record. Indeed, the Appellant's complaint is not that the grant was produced and ignored, but rather that its production was necessary in view of the Respondent's failure to defend the suit. 30. While Order 2 Rule 11 and Section 61 of the Evidence Act recognises admissions, those provisions cannot be invoked to dispense with proof of a foundational fact upon which the competence of the proceedings depends. In the circumstances of this case, the Appellant was still required to establish that the Respondent had the representative capacity attributed to him. The failure to provide such proof was fatal to the claim. 31. We are therefore satised that there was no error of law on the part of the learned Judge in arming the trial court’s nding that the Appellant failed to prove the Respondent's legal capacity to be sued. 32. With respect to the next issue, the Appellant faults the learned Judge for failing to consider the eect of the alleged non-compliance with Order 11 Rules 3 and 7 and Order 42 Rule 13 of the Civil Procedure Rules. The Appellant contended that the suit proceeded to hearing without case management directions, pre-trial compliance, or determination of the interlocutory application dated 16th September 2019, thereby occasioning a miscarriage of justice. 33. Order 11 of the Civil Procedure Rules is intended to facilitate the just, expeditious and ecient disposal of suits through pre-trial directions and case management. It provides that: “ Where orders or directions are given at a case management conference— a. the judge or deputy registrar or magistrate or case management ocer shall record the orders or directions and inform the parties thereof; and b. where necessary, the judge or deputy registrar or magistrate or case management ocer shall allocate time within which the orders or directions shall be complied with by the parties and x a date at which the judge or deputy registrar or magistrate or case management ocer shall record compliance by the parties or make such other orders as may be just or necessary including the striking out of the suit." 34. While Order 42 Rule 13 sets out the procedure governing the hearing of appeals before the High Court. 35. In alleging procedural irregularity, it is incumbent upon an appellant to demonstrate the prejudice suered as a result and to show that the irregularity occasioned a miscarriage of justice. See Universal Hardware Limited vs African Safari Club Limited [2013] KECA 507 (KLR). 36. In the instant appeal, the Appellant has not shown how the absence of formal case management directions aected the presentation of his case or altered the outcome of the proceedings or resulted in a miscarriage of justice. The record shows that he testied before the trial court, adopted his pleadings and documents, and closed his case without objection. Nothing was said regarding the alleged failure or otherwise to comply with Order 11 and Order 42 Rule 1. Bare allegations of procedural impropriety, without proof of resulting injustice, cannot suce to warrant the intervention of this Court on a second appeal. See Tobias M. Wafubwa vs Ben Butali [2017] KECA 142 (KLR). https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1689/eng@2026-09-25 6

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37. As were the two courts below, we too are satised that the Appellant has not demonstrated that he was in any way prejudiced by case management of the suit having been by passed, if at all. 38. The nal issue is whether the learned Judge properly discharged the duty of a rst appellate court in re-evaluating the evidence and arriving at an independent conclusion. 39. The duty of a rst appellate court is now well settled. In the case of Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123, the former Court of Appeal for Eastern Africa stated that a rst appellate court is obliged to reconsider the evidence, evaluate it itself and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 40. The Appellant contended that the learned Judge failed to undertake an independent analysis of the evidence and merely adopted the ndings of the trial court. 41. We have carefully reevaluated the Judgment of the Environment and Land Court as against the record as is our duty, and we do not agree. It is clear from the Judgment that the learned Judge identied the issues arising for determination, revisited the proceedings before the trial court, analysed the documentary evidence and the parties' submissions, and addressed each of the grounds of appeal. In particular, the Judge considered the Appellant’s contention that the matter had been xed for hearing of an interlocutory application rather than the substantive suit and, upon examining the record of proceedings, concluded that the substantive suit had proceeded by way of formal proof. The Judge further considered whether the grant of letters of administration had been produced before the trial court and independently concluded that there was no evidence on record establishing the Respondent's capacity to be sued. 42. The learned Judge’s analysis, and the conclusions reached, demonstrate that the learned Judge did not merely endorse the decision of the trial court, but undertook a comprehensive re-evaluation as required of a rst appellate court. The Appellant has not shown that the learned Judge overlooked relevant evidence, took into account irrelevant considerations, or misapprehended the law. In the circumstances, we nd that the learned Judge properly discharged the duty of a rst appellate court and arrived at the correct conclusion in upholding the decision of the trial court. 43. In the result, there is no merit in the appeal which we hereby dismiss with costs to the Respondent. It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2026. A. K. MURGOR …………………………………………………… JUDGE OF APPEAL DR. K. I. LAIBUTA CArb, FCIArb. …………………………………………………… JUDGE OF APPEAL G. W. NGENYE-MACHARIA …………………………………………………… JUDGE OF APPEAL I certify that this is the true copy of the original https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1689/eng@2026-09-25 7

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signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1689/eng@2026-09-25 8

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