[2022] KEHC 17050 (KLR)

Hasham v Nathoo (Civil Suit 47 of 2020) [2022] KEHC 17050 (KLR) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 17050 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 47 of 2020

MN Mwangi, J

May 6, 2022

Between

Hadi Bahadurali Hasham

Plaintiff

and

Tajdin Alibhai Nathoo

Defendant

Ruling

1. What is before this court for determination is the plaintiff’s/Administrator’s Notice of Motion dated April 26, 2021 brought under the provisions of section 3A of the Civil Procedure Act and Order 24 Rule 3 of the Civil Procedure Rules. The applicant seeks the following orders –i.That this honourable court be pleased to substitute the plaintiff herein Hadi Bahadurali Hasham, with the Administrator of the deceased’s estate; andii.That costs of this application be in the cause.

2. The application is supported by an affidavit sworn onAugust 31, 2020by John Barasa Fwamba, the Administrator of the estate of the deceased plaintiff. He averred that the plaintiff instituted a suit against the defendant on July 14, 2020but the plaintiff died on the January 15, 2021prompting the applicant to obtain grant of letters of administration ad litem on April 16, 2021.

3. The applicant deposed that it is in the interest of the estate of the deceased for him to be substituted as the plaintiff in the instant suit and that no prejudice will be suffered by the defendant because the application has been brought at the earliest opportune time after the demise of the plaintiff.

4. In the replying affidavit sworn on September 20, 2021by the defendant/respondent in opposition to the application herein, he averred that he has been advised by his Counsel on record, that the intended plaintiff does not qualify to apply for grant of representation of the deceased’s estate since the intended plaintiff is neither a spouse nor a beneficiary of the deceased’s estate and that he is not related in any way to the deceased

5. The respondent further deposed that the intended plaintiff is not in a financial position to shoulder the costs of the suit in case it is dismissed with costs, yet the plaintiff left behind a widow and adult children who are very capable of taking over the matter on behalf of the deceased.

6. The respondent averred that the Power of Attorney given on October 4, 2012which was being relied on by the applicant was in relation to Bakamoyo Limited and it was given by the plaintiff in his capacity as a director of Bakamoyo Limited and not in his personal capacity. He stated that the present suit is between the plaintiff and himself, and that Bakamoyo Limited is not a party to the instant suit, and that the applicant cannot advance the company’s interests in his own name.

7. It was averred that the said Power of Attorney was given way before the company purchased the suit property, and that the said property passed to Bakamoyo Limited on August 28, 2015. It was further averred that the interest of Bakamoyo Limited can be advanced and taken care of vide Mombasa ELC No. 43 of 2021 instituted by one Ahmed Anwar on behalf of the company, which is the donor of the Power of Attorney which it revoked from the applicant.

8. The deponent averred that the instant application is an attempt to smother his proprietary rights by extension of orders of injunction against the suit property, when the applicant has not met the threshold for grant of an injunction.

9. In a rejoinder, the applicant by way of a further affidavit sworn on October 18, 2021averred that the Special Power of Attorney in question belongs to a specific property in Mtwapa alone and it is therefore not a General Power of Attorney. He deposed that the Power of Attorney exhibited by the respondent herein is a General Power of Attorney with no mention of dealings with the suit properties. The applicant also deposed that if the deceased intended that the General Power of Attorney should deal specifically with the subject properties herein, nothing prevented him from issuing a specific Power of Attorney to the said Anwar.

10. The applicant averred that the Power of Attorney issued to one Anwar was fraudulently acquired, and that the plaintiff before his demise stated that he did not issue Power of Attorneys to different people. The applicant averred that Mr. Anwar misused the Power of Attorney by burning houses belonging to squatters then ran to Court and filed a suit in the High Court pretending to be a director of Bakamoyo Limited, whereas he is a broker.

11. The deponent deposed that the deceased died at Salmart Home for elderly persons after his wife whom he never sired any child with forcefully divorced him, and sold the deceased’s house to fund the divorce proceedings. The deponent further averred that the deceased plaintiff’s House Help, one Celestine Wekesa, who stayed with the deceased for over 25 years can confirm that it is only the home for the elderly and the applicant herein that took care of the deceased until his demise.

12. It was averred that the applicant’s authority to act is that of an Executor of the Power of Attorney and Memorandum of Undertaking, but without power of distributing the estate in question. He further averred that in the Memorandum of Undertaking dated August 23, 2018between him, the deceased, Anastacia Nthenya Kaunga and Winnie Monica Mabuti financed processing of the plaintiff’s title deed of the suit property, with the deceased taking 45% of the shares while the applicant took 55% of the shares on behalf of the two ladies Anastacia and Winnie, and that the applicant was appointed under the plaintiff’s Memorandum of Undertaking and deceased’s last will dated April 4, 2019, to manage the affairs of the company , and in particular to procure matters relating to LR No. MN/V/260, which is currently registered in the defendant’s name.

13. The applicant deposed that the plaintiff was his very close friend and that is the reason why through the Memorandum of Undertaking and the deceased’s last will dated April 4, 2019, he was appointed and authorized by the plaintiff to ensure that all his debts were paid.

14. The applicant prays that he be allowed to prosecute this matter so that all the plaintiff’s debts can be settled and for justice to be served to the deceased who underwent a rough time during his last days on earth.

15. The application was canvassed by way of written submissions. The applicant’s submissions were filed on October 26, 2021 by the law firm of Muyendo Mapesa & Company Advocates, while the respondent’s submissions were filed onOctober 12, 2021by the law firm of Okubasu, Munene & Kazungu Advocates.

16. On whether the applicant has the locus standi to sue on behalf of the deceased, Mrs. Mapesa, learned Counsel for the plaintiff submitted that the applicant herein has already acquired a limited grant ad litem giving him capacity to proceed with this instant case and his authority is limited only to act as an Executor of the Power of Attorney and Memorandum of Undertaking but without the power to distribute the estate in question. She relied on the decision in Trouistik Union International v Mbayu & another [1993] eKLR, to assert that personal representatives are persons who obtain probate or letters of administration and not blood relatives however close.

17. She further submitted that the applicant is qualified to act as the sole legal representative of the deceased as evidenced in the limited grant, Memorandum of Undertaking dated August 23, 2018, the Special Power of Attorney datedOctober 4, 2012and the deceased’s last will made onApril 4, 2019. She contended that the burden of proof shifts to the respondent to prove the allegation of the existence of the deceased’s widow and children.

18. Mrs. Mapesa further submitted that the Power of Attorney donated to the applicant was for value consideration because loss of the power would have detriment on the shareholders he represents in Bakamoyo Limited. She stated that if the deceased plaintiff intended to revoke his Special Power of Attorney, then nothing prevented him from issuing a Special Power of Attorney in respect of the two properties to the said Anwar. She however stated that when the deceased died, all the Power of Attorneys ceased to have any legal effect.

19. Mr. Munene, learned Counsel for the respondent submitted that the applicant herein has absolutely no locus standi to apply for substitution since he has not demonstrated any interest he may have over the suit property and there is no demonstration that the applicant was a party to the subject contract and/or that the family of the deceased waived their right or donated their right to pursue the claim on behalf of the estate of the deceased plaintiff. He relied on the case of Muriithi Ngwenya v Gikonyo Macharia Mwangi & 2 others[2018] eKLR, to bolster his submission.

20. Mr. Munene contended that the applicant is a busy body who has no claim whatsoever in this matter since his legal capacity to file suit was derived from a Power of Attorney, which has now ceased upon the demise of the donor. To buttress his submission, he cited the case of Ummer Suleiman Karav Maa Zabeen Sidik[2014] eKLR, where the court held that the death of the principal has the effect of instantaneously terminating the agency by operation of the law as against the agent, as he can only perform such duties as may be effected by his principal and that he is precluded from effecting duties for which he is merely a substitute.

Analysis And Determination 21. I have considered the application herein and the affidavit in support of the said application. I have also borne in mind the rival submissions filed herein. The only issue for determination is whether the applicant has the locus standi to substitute the plaintiff in this matter.

22. The estate of a deceased vests in the personal representatives who then have the capacity to file or defend suits. Such persons must be appointed by thecourt either through probate or through grant in the case of intestate succession.

23. The respondent herein has argued that the applicant is neither a spouse nor a beneficiary to the estate of the deceased and he is not entitled to apply for a grant of representation for the said estate. The respondent’s Counsel relied on section 66 of the Law of Succession Act which provides as follows-“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-(a)surviving spouse or spouses, with or without association of other beneficiaries;(b)other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;(c)the Public Trustee; and(d)creditors.”

24. Regarding the locus standi of a party filing a suit involving a deceased’s estate, thecourt in Hawo Shanko v Mohamed Uta Shanko [2018] eKLR held as follows-“...The general consensus is that a party lacks the locus standi to file a suit before obtaining a grant limited for that purpose. This legal position is quite reasonable in that if the Plaintiff or applicant has not been formally authorized by the Court by way of a grant limited for that purpose, then it will be difficult to control the flow of Court cases by those entitled to benefit from the estate. If each beneficiary is allowed to file a suit touching on a deceased’s estate without first obtaining a limited grant, then several suits will be filed by the beneficiaries. It is the Limited grant which gives the plaintiff the locus to stand before the Court and argue the case. It does not matter whether the suit involves a claim of intermeddling of the estate or the preservation of the same. One has to first obtain a limited grant that will give him/her the authority to file the suit.”

25. In Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] eKLR the Court of Appeal held that-“...a litigant is clothed with locus standi upon obtaining a limited or full letters of administration in cases of intestate succession...”

26. The term “legal representative” is defined in section 2 of the Civil Procedure Act as-“a person who in law represents the estate of a deceased person, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.”

27. In Trouistik Union International and Anor. vs. Mrs. Jane Mbeyu and another(supra), the Court of Appeal extensively addressed itself on the issue of personal representatives and expressed itself as follows -“The common law is that “action personalis moritor cum persona”, that is, a personal action dies with the person. This rule was, however, to a large extent, supplanted by the Law Reform Act, which Act keeps alive, with few exceptions, causes of action which vest in a person since deceased. Accordingly, to determine who is empowered to enforce that chose in action, for what purposes, and when in point of time, one must look at that Act and allied relevant legislation. One such enactment is the Law of Succession Act, cap 160. Section 2 of that Act provides in mandatory terms, that unless any other written law provides otherwise, the provisions of the Act “shall constitute the law in Kenya in respect of and shall have universal application to all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of the Act”. The Act came into force on the July 1, 1981 and the person whose death gave rise to this suit died on April 10, 1984…To determine who may agitate by suit any cause of action vested in him at the time of his death, one must turn to section 82(a) of the Law of Succession Act, which confers that power on personal representatives and on them alone. As to who are the personal representatives within the contemplation of the Act, Section 3, the interpretative section provides an all inclusive answer. It says “personal representative means executor or administrator of a deceased person”. It is common ground that the deceased in this case did not die testate and therefore, the only person who can answer the description of a personal representative is the administrator of the estate of the deceased. The next inquiry must answer the question, who is an administrator within the true meaning and intendment of the Act? Section 3 says “administrator means a person to whom grant of letters of administration has been made under this Act” …It is not in doubt that the two Respondents who invoked the aid of the court to agitate the cause of action which survived the deceased, were not persons to “whom a grant of letters of administration have been made under the Act” i.e. the Law of Succession Act and they did not even pretend to be such. The only capacity, in which they sought to enforce the deceased’s chose in action, was as dependants. At common law, death by itself automatically divests the deceased of his chose in action and the reason for this is because in law, the dead have no rights. But no legal right is without an owner so it must be vested in a person or entity…Our Law of Succession Act, cap 160, did not provide for the vesting of an intestate’s property between the date of death and the grant of letters in any entity. So the suggestion that it will be vested in the courts conforms with the common law notions of the transmission of an intestate’s right or estate. It ought to be remembered that all these temporary custodians of an intestate’s rights are bare trustees only. But as soon as a grant is obtained, the right or estate vests automatically and by force of the grant in the administrator…”

28. Similarly, in Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] eKLR, the Court held that-“Under section 2 of the Law Reform Act, the person who is entitled to bring a cause of action in respect to the estate of a deceased person is a personal representative or an executor or administrator respectively. In that case such a person ought to first obtain an appropriate grant so as to have the necessary locus standi.”

29. Order 24 Rule 3 of the Civil Procedure Rules provides for the effect of death of one of several plaintiffs or of sole plaintiff. It states as follows-“(1)Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.(2)Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff:Provided the court may, for good reason on application, extend the time.”

30. It is therefore clear that the only person who can substitute a deceased litigant is the legal representative of the deceased person. In this case the applicant herein is a legal representative of the deceased plaintiff but his capacity is limited to the Power of Attorney and the Memorandum of Undertaking of the deceased as per the limited grant of letters of administration ad litem annexed by the applicant’s affidavit and marked “JBF 2”.

31. It is also noteworthy that Order 24 Rule 3 does not provide that the said legal representative must be a person who is a spouse to the deceased or a beneficiary of the deceased’s estate. To read such a rider into the provision ofsection 66 of the law of succession Act and Order 24 rule 3 of the Civil Procedure Ruleswould amount to amending the law and rules, a power solely preserved for the Rules Committee under section 81 of the Civil Procedure Act. See Judah Ndambuki Kituku v Leonard Mutuku Sesi & 2 others[2019] eKLR.

32. It is noteworthy that the plaintiff died on 15 January, 2021, and the applicant obtained the limited grant on April 16, 2021. He then filed this application on May 6, 2021 before one year had lapsed. I see no reason why I should not grant the prayers sought. I do allow the applicant to substitute the deceased plaintiff in this suit.

33. The respondent has also led evidence to the effect that the grant of administration ad litem issued by the Chief Magistrate was obtained through misrepresentation and concealing of facts by the applicant. The respondent went ahead to urge this Court to exercise its supervisory jurisdiction by holding that the said grant is a nullity. The issue of the limited grant being obtained through misrepresentation and concealment of facts was not an issue before thiscourt and submissions cannot take the place of evidence. See the Court of Appeal decision in Daniel Toroitich Arap Moi & another vs- Mwangi Stephen Murithi & another[2014] eKLR, where it was held thus-“Submissions cannot take the place of evidence. The Respondent had failed to prove his claim by evidence what appeared in submissions could not come to his aid---Submissions are generally parties “marketing language.”

34. On the issue of reliance on the Powers of Attorney, it is common ground that once the deceased died, all the Powers of Attorneys were terminated and the same are not relevant in these proceedings.

35. The upshot of the foregoing is that the application dated April 26, 2021 has merits and is allowed in the following terms -i.That the deceased plaintiff be and is hereby substituted by John Barasa Fwamba herein as the plaintiff; andii.That the costs of the application dated April 26, 2021are awarded to the applicant.

36It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 6TH DAY OF MAY, 2022. THE RULING HAS BEEN DELIVERED THROUGH TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Mrs. Mapesa for the plaintiffMr. Munene for the defendantMr. Oliver Musundi – Court Assistant.