[2018] KEHC 365 (KLR)
The court found that the appellant had obtained a limited grant of letters of administration ad litem on 17/11/2009, prior to filing the suit on 21/12/2009. The effective date of the grant was the date it was issued by the court, not the later date of signing or extraction. Therefore, the appellant had the requisite...
Source-derived case information.
- Citation
- [2018] KEHC 365 (KLR)
- Parties
- Appellant: Betty Jepkemoi (Suing as representative of the estate of the late Sammy Kiptoo); Respondent: Philip Limo; Respondent: Salah Abdi Noor
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 53 of 2012
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- HK Chemitei
- Legal Topics
- Locus Standi, Letters of Administration, Fatal Accidents, Damages Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Betty Jepkemoi (Suing as representative of the estate of the late Sammy Kiptoo)
Appellant
Philip Limo
Respondent
Salah Abdi Noor
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant had locus standi to file the suit as a personal representative of the deceased estate.
- 2 Whether the trial court erred in dismissing the suit for want of letters of administration.
- 3 Whether the alleged out-of-court agreement affected the appellant's right to sue.
Ratio Decidendi
The court found that the appellant had obtained a limited grant of letters of administration ad litem on 17/11/2009, prior to filing the suit on 21/12/2009. The effective date of the grant was the date it was issued by the court, not the later date of signing or extraction. Therefore, the appellant had the requisite locus standi to institute the suit as a personal representative of the deceased estate. The trial court erred in dismissing the suit for want of letters of administration. The alleged agreement between the deceased's father and the respondents was not binding on the appellant and was not properly produced in evidence. The appeal was allowed, the lower court's dismissal set...
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The lower court judgment dismissing the suit is set aside.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CIVIL APPEAL NO. 53 OF 2012
(Being an appeal arising from Judgment and Decree in Eldoret Chief Magistrate's Court Civil Suit No. 1029 of 2009delivered by D.K. Kemei Senior Principal Magistrate )
BETTY JEPKEMOI (Suing as representative of the estate of the late
SAMMY KIPTOO (DECEASED)...................................APPELLANT
Versus
PHILIP LIMO......................................................1ST RESPONDENT
SALAH ABDI NOOR.........................................2ND RESPONDENT
J U D G M E N T
1. On 27/6/2009, the deceased Sammy Kiptoo was involved in a road traffic accident along Eldoret – kisumu road at Eldoret Polytechnic as he was cycling along the said road. The motor vehicle involved was Registration No. KBF 339 which belonged to the 2nd Respondent. As a consequences of the said accident he was rushed to Moi Teaching and Referral Hospital but died while undergoing treatment.
2. The appellant who is a sister to the deceased took out letters of administration and filed the suit claiming inter alia damages under the Law Reform Act and the Fatal Accident Act.
3. Evidence was advanced on how the accident occurred. PW1 Betty Chepkemboi Tanui, PW2 Patrick Wandabwa who witnessed the accident and John Karuriwho worked with the deceased selling Mitumba shoes along Lengut hotel within Eldoret town and P.C. Lucy Okumu from Langas police station testified on behalf of the appellant.
4. The Respondents on their part did not call any witness and neither did they produce any exhibits. They closed their case. They however filed their amended defence denying the charge.
5. The trial court ( Hon. Kemei PM) as he then was dismissed the suit for interalia that the appellant lacked locus standi to file the same for want of letters of administration. Secondly that there was a prior agreement between the deceased father and the respondent to settle the matter out of court.
6. The said dismissal prompted this appeal. The central argument of the appeal is the fact that the trial court err when it dismissed the suit for lack of Letters of Administration by the appellant.
7. When this matter came up for hearing I ordered that the same be determined by way of written submissions. The parties obliged and I have perused the same extensively together with the cited authorities. The court has equally perused the trial court's proceedings.
8. What is clear is that the cause of deceased death was the accident that occurred on the material day as per the evidence on record. In the absence of any rebuttal by the respondent, it is my considered view that the evidence adduced by the appellant witness was the truth.
9. Did the appellant at the time of filing suit have letters of administration? Section 82 of the Law of Succession Act clearly stipulates who personal representative is. Clearly one cannot intermiddle with the deceased estate without the grant of letters of administration whether limited or otherwise.
10. I have perused exhibit P1, a limited grant of Letters of administration ad litem. The same shows that they were issued to Betty Jepkemoi on 17/11/2009 and signed on 9/3/2011.
11. The argument is what was the effective date? Is it the date when it was issued or when it was signed? I think it was the date it was issued. The extraction and signing is purely an administrative exercise. The effective date is when the Judge pronounced himself.
12. From the exhibit, the date indicated as when it was signed was 9/3/2011 although Justice J.R. Karanja issued it on 17th November 2009.
13. Having stated so, I find that the plaint was filed on 21/12/2009 by the appellant. It therefore means that on the strength of the limited grant afore stated, the appellant had capacity to file the suit. On that ground alone the appeal succeeds.
14. As regards the alleged agreement between one Joseph Kiptanui Marindany and Abdi Aden and Philip Limo which I do not think it was produced, even if it had been produced the same was dealing purportedly with the deceased estate without either of parties procuring letters of administration. In any event the appellant was not written as the sole administrator of the deceased estate.
15. Having found that the suit was properly before the court, I shall allow this appeal. As regards damages I do not find any fault in computation by the trial court. The amount that the court would have awarded was not manifestly low or high. At any rate the same was not a subject of this appeal or cross- appealed.
16. In the premises this appeal is allowed, the lower court judgement dismissing the suit set aside. The award of damages by the lower court is adopted in its entirety.
17. The appellant shall have the costs of this appeal as well as in the lower court.
Orders accordingly.
Delivered, signed and dated at Eldoret in open court on this 19th day of October, 2018.
_________________
H.K. CHEMITEI
JUDGE
19/10/18