Milkah Wangui Mungai (suing As The Personal Representative of The Estate of Peter Irungu Kariuki) v Joseph Chomba & 1 other

3. That the 2nd respondent was reliably informed by one of the passengers that he had hit a person but opted to drive off and leave the deceased to succumb to the severe head injuries sustained. 4. The appellant avers that the accident was caused by the utter negligence on the part of the owner, manager and/or the driver of the subject vehicle. The particulars of negligence attributed to the respondents are stated at paragraph 16 of the plaint as; failing to observe the Highway Code and/or avoid the accident. Failure to avoid motor vehicle KCG 688D veering towards the opposite lane and to service and maintain the said motor vehicle. 5. Further by driving at an excessive speed, without due care and attention in the circumstances of the case, driving while in the influence of intoxicating substances and finally neglecting and ignoring to take the deceased to the hospital immediately after the accident ultimately causing his death. 6. The appellant avers that the deceased was survived by his widow Milkah Wangui Mungai, and the four (4) children; George Kariuki, Kevin Njoroge, Hannah Gathoni Irungu and Brian Munga. That he was a farmer and a businessman earning an income of Kshs. 80,000 per month, which he used to support his immediate and extended family. 7. That following his demise his children have been no left with no means of education and subsistence. Furthermore, the deceased’s sickly parents have no one to cater for their recurrent medical and basic needs. 8. However, the claim was opposed by the respondents vide a statement of defence dated 7th November 2018 wherein the respondents denied all the averments in the plaint and in particular the occurrence of the accident and the manner in which it occurred and the particulars of negligence attributed to them. 9. However, on a without prejudice basis and in the alternative, the respondents averred that any such occurrence as the appellant may prove was caused solely and/or substantially contributed to by the negligence of the deceased. 10. That the deceased walked on the road negligently, carelessly and dangerously, without due care and attention, failed to keep on the pedestrian path, entered the road without observing the kerb, and failed to have regard to the subject vehicle and move to avoid the accident. 11. The case proceeded to hearing wherein the appellant’s case was supported by the evidence of (PW1) Milka Wangui Mungai the deceased’s wife who relied entirely on the statement she filed alongside the plaint. The appellant’s case was also supported by the evidence of (PW2) No. 88790 PC Pauline Kibari who produced the police abstract which indicated inter alia, the accident involved a motor vehicle KCG 688D and a pedestrian, Peter Kariuki, and was still pending investigations. 12. The respondents’ case on the other part was supported by the evidence of No. 84867 PC Rachael Lotucon who also produced an OB extract dated 20th October 2017. 13. At the conclusion of the trial, each party filed their respective submission and by a judgment dated 15th July 2024, the appellant’s case was dismissed with orders that each party meet its own costs 14. However, the appellant is aggrieved by the decision of the trial court and appeals against it on the following grounds: a. The learned Magistrate erred in law and in fact by finding that the appellant had not established locus standi in the suit. b. The learned Magistrate erred in law and in fact by finding that the appellant lacked capacity to institute the suit in view of section 58 of the Law of Succession Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19334/eng@2025-11-05 2

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c. The learned Magistrate erred in law end fact in failing to appreciate and find that the appellant had proved her case on a balance of probabilities against the respondents. d. The learned Magistrate erred in law and fact by entering Judgement on liability at against the appellant considering the evidence on record and trial, the same had not been proved. e. The learned Magistrate erred in law and fact in reaching a conclusion that was contrary to the evidence placed before her and therefore finding no liability on part of the respondents. f. The learned Magistrate erred in law and fact by failing to award special damages including funeral expenses which had been pleaded. g. The learned Magistrate erred in law and in fact by reaching a determination that the suit was a nullity and thus failed to award the appellant general damages assessed under the Law Reform Act and the Fatal Accidents Act. 15. The appeal was disposed of vide filing of submissions. The appellant in submissions dated 10th March 2025, argued that the learned magistrate erred in finding that she lacked locus standi in view of section 58(1) of the Law of Succession Act which requires that at least two (2) administrators be appointed where there is a continuing trust. 16. She submitted that a continuous trust envisaged under section 58 of the Act does not apply to limited grants since any personal representative granted a limited grant ad litem has capacity to only institute civil proceedings but not to administer the estate. That upon conclusion of the civil proceedings, such personal representative becomes functus officio. Furthermore, a limited grant does not preclude other persons from applying and obtaining a full grant. 17. The appellant relied on the case of; In the Estate of Helena Wangechi Njoroge (Deceased) [2015] eKLR, where the court stated that a grant of letters of administration ad litem does not fall in the realm of a probate case but rather a civil case. 18. The appellant further relied in the case of; In Re David Kiamba Muli (Deceased) Winrose Emmah Ndinda Kiamba v Agnes Nthambi Kasyoka (Succession Appeal No. E1 of 2020) [2021] eKLR, where the High Court stated that a limited grant may not be subjected to the full and strict compliance as if it’s a full grant. 19. The appellant further referred the court to the case of; Kenya Power & Lighting Company Limited v Mwangi (Suing as Legal Representative of the Estate of Geoffrey Muthii Muthike - Deceased) [2023] KEHC 24211 (KLR), where the High Court stated that a limited grant is different from letters of grant of administration and does not require two people to be appointed. 20. The appellant submitted that locus standi was properly established under section 7 the Fatal Accidents Act (Cap. 32) Laws of Kenya which provides that, where no action is brought by an Executor or Administrator within six (6) months of death, an action may be brought by and in the name of any person for whose benefit it would have been brought, and such action shall be deemed to have been brought by the executor or administrator. That the appellant, being the widow of the deceased and a person beneficially interested, was properly clothed with capacity to institute the action. 21. The appellant argued that, the fact that letter of administration had been taken out meant the case was anchored under the Law Reform Act. The appellant referred the court to the case of; John Kanyungu Njogu v Daniel Kimani Maingi [2000] eKLR, where the court evaluated the case under the Fatal Accidents Act after the plaintiff withdrew the claim under the Law Reform Act for lack of letters of administration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19334/eng@2025-11-05 3

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22. The appellant submitted on liability, that the occurrence of the accident was not disputed. That the evidence adduced proved that the driver of the subject vehicle did not attempted to slow down, stop or swerve to avoid the accident. Further, the first report was made by police officers rather than the driver. Furthermore, the deceased died instantly, an indication that the driver was driving at an excessive speed and ought to have been aware of human traffic along the route where he was dropping and picking passengers. 23. The appellant relied on the case of; Gichia v Mungai & another (Suing as the Administrator of Joseph Warui Mungai) [2023] KEHC 22411 (KLR), which is of similar circumstances as herein and the court held that drivers within township or rural areas owe a heightened duty of care to pedestrians and ought not to exceed 40 km/h. 24. The appellant thus urged that liability be apportioned at 100% against the respondents. 25. The appellant urged on quantum that she was entitled to damages under both the Law Reform Act and the Fatal Accidents Act, of Kshs. 30,000 for pain and suffering, Kshs. 100,000 for loss of expectation of life, and Kshs. 1,000,000 for loss of dependency as assessed by the trial court. Furthermore, the special damages of Kshs. 165,100 were specifically pleaded and proved through receipts contained in the list of documents, with Kshs. 54,000 being for funeral expenses. 26. The appellant relied on the case of, Ben Otieno Owaga & 2 others v Eliakim Owalla & another [2017] KEHC 816 (KLR), where the High Court allowed reasonable funeral expenses even when not fully proved on the rationale that a mourning family may not preserve all receipts in anticipation of a court case. 27. The respondents did not file any submissions despite being accorded an opportunity to do so. 28. At the conclusion of the arguments by the parties and in considering the same, I find that the role of the appellate court is to re-evaluate the evidence adduced afresh and arrive at its own conclusion as stated by the Court of Appeal in the case of; Selle & Another v Associated Motor Boat Co. Ltd. & Others (1968) EA 123. 29. The court stated as follows: “ I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must 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 this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 30. In the instant matter, the trial court dismissed the appellant’s case mainly on the ground that the grant issued to the plaintiff offends the provision of section 58 of the Law of Succession Act as such the suit is a nullity. 31. However, the trial court proceeded to pronounce itself on the issue of liability and quantum had the claim been proved. At this stage I shall not delve into the trial court’s finding on liability and quantum. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19334/eng@2025-11-05 4

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In my considered opinion the main issue herein is whether there was a competent suit before the trial court in the first place. 32. In that case, it suffices to note that there are Letters of Administration Ad Litem dated 31st January 2018 issued by the Deputy Registrar Naivasha pursuant to section 54 of the Law of Succession Act, and Rule 14 of the Fifth Schedule of the Act. 33. The argument herein is that, section 58 of the Act does not recognize the said Letters of Administration Ad Litem as valid as the other beneficiaries are minors and the petitioner could not be appointed as the sole Administratrix of the deceased’s estate. Notably, upon considering the submission filed by the appellant in the trial court, the subject issue herein was not raised and/or addressed. 34. On the other part, the respondents argued strongly on the issue in their submissions in the trial court and sought for striking out of the plaintiff’s suit with costs due to want of locus standi. The court agreed with the respondents in dismissing the appellant’s suit. 35. The provisions of section 58 of the Law of Succession Act states as follows: (1) (2) Where a continuing trust arises— (a) no grant of letters of administration in respect of an intestate estate shall be made to one person alone except where that person is the Public Trustee or a Trust Corporation. (b) no grant of letters of administration with the will annexed shall be made to one person alone except where(i) that person is the Public Trustee or a Trust Corporation; or (ii) in the will the testator has appointed one or more trustees for the continuing trust who are willing and able to act. Where an application for a grant of letters of administration in respect of an intestate estate is made by one person alone and a continuing trust arises the court shall, subject to section 66, appoint as administrators the applicant and not less than one or more than three persons as proposed by the applicant which failing as chosen by the court of its own motion. 36. Having considered the afore provisions of the law, I agree with the submissions of the respondents that the grant issued to the appellant and on whose strength she filed the suit is null and void, and the resultant suit is also null and void. 37. Consequently, there was no suit in the first place, worth defending, hearing, submitting and capable of any judgment. It therefore follows that all proceedings taken in the trial court are null and void. 38. The judgment too is null and void and cannot be a subject of any appeal herein. I therefore allow the appeal and set aside the order dismissing the appellant’s otherwise non-existent suit, there being no competent suit, the “suit” in question should have been struck out and not dismissed and I hereby strike it out. 39. However, I also hold the view that, the respondents should have raised the issue of locus standi as a preliminary objection and at the earliest, as such the issue of a defence and/or hearing of the case generating costs would have been avoided. As such the costs in this matter shall be met by each party. 40. It is so ordered. DATED, DELIVERED AND SIGNED THIS 5TH DAY OF NOVEMBER 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19334/eng@2025-11-05 5

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GRACE L. NZIOKA JUDGE In the presence of: Mr. Chege for the appellant N/A for the respondent Ms. Hannah: court assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19334/eng@2025-11-05 6

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