[1990] KEHC 84 (KLR)
The application for review fails because the applicant did not demonstrate that the Hintz v Mwakima decision was a new and important matter or evidence that could not have been discovered with due diligence prior to the original order. Furthermore, the legal position established in Hintz v Mwakima has been overruled...
Source-derived case information.
- Citation
- [1990] KEHC 84 (KLR)
- Parties
- Applicant: Kuria; Respondent: Shah
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 122 of 1986
- Procedural Posture
- Review Application / Ruling on Application for Review of Order Striking Out Plaint
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Court Orders, Letters of Administration, Locus Standi, Personal Representative Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kuria
Applicant
Shah
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Order Striking Out Plaint
Legal Issues
- 1 Whether the discovery of the Hintz v Mwakima case constitutes new and important matter or evidence justifying review of the court's order striking out the plaint.
- 2 Whether a personal representative can sue on behalf of the estate of a deceased without first obtaining letters of administration.
Ratio Decidendi
The application for review fails because the applicant did not demonstrate that the Hintz v Mwakima decision was a new and important matter or evidence that could not have been discovered with due diligence prior to the original order. Furthermore, the legal position established in Hintz v Mwakima has been overruled by the Court of Appeal in Virginia Edith Wambui Otieno v Joash Ochieng Ougo and Omolo Siranga, which held that an administrator cannot bring an action on behalf of a deceased's estate without first obtaining letters of administration. Therefore, the application is both procedurally and substantively without merit and is dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for review is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CIVIL CASE NO 122 OF 1986
KURIA…..……………......…………APPLICANT
VERSUS
SHAH……………………………..RESPONDENT
RULING
This is an application which has been brought seeking the review of this court’s order made on 1. 12. 89 striking out the plaint brought by the applicant on behalf of the estate of his son on the ground that he had no grant of letter of administration intestate. The principles for the successful grant of a review are well settled and the two which are pertinent to this application are that some new and important matter or evidence which could not with diligence have been discovered, have been discovered, after the order sought to the reviewed was made, or for any other sufficient cause. The new discovery made according to the affidavit in support of the application, is that it had come to the attention of counsel for the applicant after the order of this court was made on 1. 12. 89, that the decision of the Court of Appeal in the case of Hintz v Mwakima,(1982-88) 1 KAR 482, had held that a personal representative as opposed to a legal representative, could sue in Kenya for damages for the benefit of the estate of a deceased person. Why this authority could not have been discovered after the exercise of due diligence even if this authority could be regarded as “new and important matter or evidence”’ is not explained. Since also the phrase’“any other sufficient reason” has been held to mean any other sufficient reason analogous in this case, to the discovery of new and important matter or evidence, it means that if I reject this application on the ground that it has not been established that the discovery or the report of the Hintzcase is not a new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of counsel for the applicant, I must also hold that there is also no other sufficient reason to grant the application. It is so ordered. But counsel for the applicant has not pressed this aspect of the application and has contented himself to showing that the decision in the Hintzcase is no longer good law, namely that a personal representative or administrator of a deceased, from more recent decisions of the Court of Appeal, cannot sue on behalf of the estate of the deceased without first having obtained letters of administration. He cited among others the celebrated case of Virginia Edith Wambui Otieno v Joash Ochieng Ougo and Omolo Siranga, Court of Appeal at Nairobi Civil Appeal No 31 of 1987. In the judgment of the court in that case where the appellant claimed the right to bury her husband as his personal representative, the Court of Appeal had the following to say:
“But an administrator is not entitled to bring an action as administrator before he has taken out letters of administration. If he does the action is incompetent at the date of its inception
………………………………………………….....................
She cannot legally claim the right to bury the body of her husband as his personal representative. It follows that if the appellant relies on the common law itself it will not assist her. She is not yet able to sue as personal representative until the grant of letters of administration to her”.
This is great authority. I am also indebted to Mr Fraser, counsel for the respondent who also drew my attention to the ruling of Shields J in the case of Elias Awinda Ochola v Peter K LangatHCCC No 3081 of 1986 where the Hintzcase and the Otienocase were considered and where Shields J came to the conclusion that the Hintzcase was no longer good law having been overruled by the Otienocase. I respectfully agree with Shields J.
And so had I not held that the application was incompetent because it does not satisfy the conditions laid down in 0 44 r 1(1) under which it had been brought, I would have dismissed it on the ground that the Hintzcase upon which reliance has been placed is no longer good law. In the result the application is dismissed with costs.
Dated and Delivered at Nairobi this 8th Day of March, 1990
A.M.AKIWUMI
…………….
JUDGE