https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12384

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E001 OF 2025** **NICK OMONDI ORINDO…………………………..………….APPELLANT** **-VERSUS-** **ESTHER GLADYS OWITI………………………………….RESPONDENT** **(Being an appeal from the judgment/decree of the Honourable L.N. Kiniale (S.P.M) delivered on the 5/12/2024 in Nyando CMCC E130 of 2021)** **Introduction** 1. The Respondent instituted a suit against the Appellant in ***CMCC No. E130 of 2021*** seeking compensation in the form of general damages, special damages, costs and interest under the Fatal Accidents Act as well as the Law Reform Act as a result of a road traffic accident that occurred on 18/7/2021. 2. After a full hearing, the trial court found the Appellant 100% liable for the accident and entered judgement in favour of the Respondent as follows: - 1. Pain and suffering- Kshs.30,000/- 2. Loss of expectation of life: Kshs.100,000/- 3. Dependency-Kshs.1,060,463.60/- 4. Special damages-Kshs.318,642.00/- 5. Costs of the suit. 3. It is the above finding that the Appellant is challenging, on *locus standi*, liability and assessment of the quantum of damages payable under the head of loss of dependency. **Trial Court Evidence** 1. During the trial, the Respondent testified on the particulars of the deceased’s dependents and on the nature of the deceased’s employment. She produced documents in support of her suit including the death certificate of the deceased, Grant of Letters of Administration ad litem and receipts in support of her claim for special damages. 1. The Respondent called three additional witnesses. Pw2, Olga Achieng, an eye witness, testified on the circumstances of the occurrence of the accident and the negligence attributed to the Appellant; Pw3, Josiah Odhiambo, testified that he provided catering services during the deceased’s funeral and produced the relevant exhibits and Pw4, Erastus Mitch Owera, who testified to confirm the deceased’s employment with Best Line Sacco Limited and produced the relevant exhibits. 2. On his part, the Appellant filed a statement of defence but did not call any witness. 3. The Appellant being dissatisfied with the judgement of the lower court appealed against it vide a Memorandum of Appeal dated 18/12/2024 which set out the following grounds of appeal:- “*1. THAT the Learned Trial Magistrate erred in fact and in law by disregarding the submissions of the Defendant that the Legal Representative had no locus to institute the suit as Letters of Administration Ad Litem were issued to one legal representative despite being a continuous trust as minors* *were among the beneficiaries.* *2. THAT the Learned Trial Magistrate erred in law and in fact in awarding loss of dependency of Kshs.1,060,463/- and applying a multiplier of 7 years despite the deceased being 56 years.* *3.THAT the Learned Trial Magistrate erred in law and fact in using a multiplicand of Kshs. 18,936 when there was no proof.* *4. THAT the Learned Trial Magistrate's exercise of discretion in assessment of quantum was injudicious.* *5.THAT the Learned Trial Magistrate erred in fact and in law in failing to consider the Appellant's submissions on both the lack of locus of the Legal Representative and quantum by completely disregarding the submissions and authorities of the Appellant and, as a result, arrived at an unjustified decision on quantum*.” 1. Based on the foregoing, the Appellant prayed inter aliafor the appeal to be allowed, the judgement of the lower court set aside and for costs. **Appellant’s Submissions** 1. The Appellant filed submissions dated 9/5/2026 in support of his appeal. He submitted that the appeal raised two broad issues, namely whether the Respondent had the requisite *locus standi* to institute the suit and whether the trial court erred in its assessment of damages for loss of dependency. 2. On *locus standi*, the Appellant contended that the limited grant of letters of administration ad litem issued on 30/7/2021 was invalid for contravening section 58 of the Law of Succession Act. It was argued that since the deceased was survived by minor children, a continuing trust arose and the law prohibited the issuance of a grant to a sole administrator. 3. The Appellant submitted that the Respondent, having obtained the grant alone, lacked the legal capacity to institute the suit, rendering both the grant and the proceedings founded upon it a nullity. 4. Without prejudice to the foregoing, the Appellant challenged the award for loss of dependency. It was submitted that the deceased's alleged monthly income of Kshs.40,000/= was not proved by any documentary evidence and that the trial court erred in adopting the minimum wage applicable to drivers working in cities and municipalities. The Appellant argued that, as the deceased hailed from Oyugis, the applicable minimum wage under the Regulation of Wages (General Amendment) Order, 2018 was Kshs.13,975.30/-. 5. The Appellant further argued that the multiplier of seven years was excessive given that the deceased was aged 56 years at the time of death. It was submitted that the court ought to have taken into account the uncertainties of life and adopted a multiplier of three years instead. 6. Accordingly, the Appellant urged the Court to allow the appeal, strike out the suit for want of locus standi or, in the alternative, interfere with the award for loss of dependency by adopting a lower multiplicand and multiplier, and award the costs of both the appeal and the proceedings before the trial court. **Respondent’s Submissions.** 1. The Respondent opposed the present appeal through written submissions dated 27/10/2025. It was submitted that the appeal was devoid of merit and that the trial court properly determined the issues of locus standi, liability and quantum. 2. On locus standi, the Respondent submitted that the limited grant of letters of administration ad litem issued on 30/7/2021 validly clothed her with capacity to institute the suit pursuant to section 54 of the Law of Succession Act. It was argued that although the Appellant challenged the grant on the basis that the deceased was survived by minor beneficiaries, the grant had neither been revoked nor challenged before the probate court. The Respondent maintained that the validity of the grant could only be questioned in succession proceedings and not in the present suit. Reliance was also placed on Article 159(2)(d) of the Constitution, it being submitted that striking out the suit would unjustly prejudice the minor beneficiaries. The Respondent therefore urged the Court to uphold the trial court's finding that she had the requisite capacity to sue. 3. On the award for loss of dependency, the Respondent supported the trial court's adoption of a multiplier of seven years, submitting that the deceased, though aged 56 years, was in good health and worked as a driver in private employment where retirement at the age of 60 was not mandatory. It was argued that the multiplier reasonably reflected the deceased's probable remaining working life and was consistent with the decision in ***Jamal Aleem v Jane Chebore Too [2018] eKLR*.** 1. The Respondent further submitted that the dependency ratio of two-thirds was justified since the deceased was the sole breadwinner for his widow and four children. 1. Regarding the multiplicand, the Respondent submitted that although an employer's letter indicated that the deceased earned Kshs.40,000/= per month, the trial court properly adopted the statutory minimum wage of Kshs.18,936.85/- applicable to drivers under the Regulation of Wages (General) (Amendment) Order, 2018 in the absence of pay slips. It was argued that this approach was both conservative and supported by authority, while the Appellant's proposal to apply the minimum wage for a general labourer was erroneous given that the deceased was a skilled driver. 2. The Respondent further submitted that the trial court properly exercised its discretion in assessing damages and that there was no basis for appellate interference. It was contended that the awards for pain and suffering, loss of expectation of life, loss of dependency and special damages were supported by the evidence and applicable legal principles. The Respondent also maintained that special damages were strictly proved through documentary evidence. 1. The Respondent rejected the Appellant's contention that the trial court failed to consider the defence submissions. It was submitted that the judgment expressly addressed the issues of locus standi and quantum before rejecting the Appellant's proposals, including the suggested global award, in favour of the multiplier approach. 1. On liability, the Respondent submitted that the finding of 100% liability against the Appellant was fully supported by the evidence. It was argued that the eyewitness testimony established that the Appellant's vehicle was being driven at excessive speed, lost control and knocked the deceased, while the Appellant failed to adduce any evidence in support of the defence or the allegations of contributory negligence. 2. Accordingly, the Respondent urged the Court to dismiss the appeal with costs and uphold the judgment and decree of the trial court in their entirety. **Analysis and Determination** 1. This being the first Appellate court, its duty is as summarized by the Court of Appeal in**Selle & Another vs Associated Motor Boat Company & Others, [1968] EA 123**: which is:- "… to 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…’’ 1. Having considered the appeal, the rival, I frame the following issues for determination: - 1. ***whether the trial magistrate erred in failing to strike out the matter for lack of locus standi.*** 2. ***Whether the trial court erred in the assessment of liability and loss of dependency.*** 2. ***whether the trial magistrate erred in failing to strike out the matter for lack of locus standi.*** 3. On this issue, the trial court found that the Respondent held a valid, unchallenged grant and had the requisite locus standi to institute the suit. The court also observed that the grant could be amended to include an additional administrator to safeguard the interests of the minor children, thereby settling the issue of locus standi. 4. The Appellant submitted that a grant in which the Respondent relied on in filing the suit was made to one person despite minors being listed as beneficiaries of the estate of the deceased which meant that the said grant is invalid, and available for revocation under section 76 of the Law of Succession Act and thus the suit in the lower court which was founded on the said grant was equally invalid or void, and ought to be struck out. 5. The Respondent on her part submitted that the grant had not been revoked or challenged in the probate court, and thus, the Respondent had the requisite capacity to sue. Further the Respondent submitted that striking out the suit would prejudice the legitimate expectations of the minor dependents, who are entitled to compensation for the loss of their breadwinner. 6. It is not in dispute that the deceased passed away on 18/7/2021 and that the Respondent who is his widow obtained a limited grant of letters of administration ad litem for the purpose of instituting the suit in the lower court. The said limited grant was granted to the Respondent only. It was produced on page 40 of the Record of Appeal dated 9/10/2025. 1. It emerged during the trial that the deceased had beneficiaries who were minors and therefore the question that arose before the trial court is whether under section 58 of the Law of Succession Act, the Respondent could be appointed as a sole administrator. 2. **Section 58 of the Law of Succession Act** states:- “*58. Number of administrators where there is a continuing trust* *1. 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)...* *2. 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*.” 1. The provision above makes it clear that grant of letters of administration in respect of an intestate estate shall not be made to one person alone where there is a continuing trust. A continuing trust arises where the deceased is survived by minors as beneficiaries. 2. In ***Onjoro & another v Ekaka (Suing as the Administrators of the Estate of Edisa Nasirumbi, Deceased) [2023] KEHC 20051 (KLR)*,** the court dealt with an appeal with similar circumstances as the present one, it stated the following:- “*The plaint filed at the trial court indicates that the deceased was survived by 8 minor children. Consequently, a continuing trust arose with respect to her estate, and a grant obtained in intestacy, in respect of her estate, whether full or limited, was bound to comply with section 58. No grant ought to have been made in her case to one administrator. The fact that one was made would mean that the said grant is invalid, and available for revocation under section 76 of the Law of Succession Act. ……..Article 159 of the Constitution cannot save it, as this is not a matter of technicality of procedure, but the capacity of the persons suing. The competence of a suit is dependent on the capacity of a person to initiate it. Where capacity is lacking, the suit cannot be valid. A person who holds a grant that ought not to have been made to him in the first place, has no capacity to initiate a valid suit. Capacity to sue is a qualification to sue, a condition precedent to filing suit. The matter of capacity cannot possibly be a question of procedure*.” 1. Similarly, in**Veronicah Mwikali Mwangangi v Daniel Kyalo** **Musyoka [2005] KLR** (Ang’awa, J), struck out a suit with costs and stated the following:- “*Where children are concerned in an estate, where the legal representative is a male or female, there must be two administrators to take up the Limited Grant for purposes of filing suit. This assists in ensuring that the resulting trust created for the children is safe guarded…….I hereby rule that for there to be a suit by a legal representative or dependent there must be two persons filing suit as to plaintiffs to guard the interest of the minor*.” 1. I am pursued by the said authorities that buttress Section 58 of the Law of Succession Act, and in the circumstances, I find that the limited grant issued to the Respondent was invalid as it was issued to her alone despite the fact that the deceased had children who were his beneficiaries. The grant was issued contrary to the mandatory provisions of section 58 of the Law of Succession Act and is available for revocation. 1. It follows that the said grant cannot properly confer authority upon the holder to institute proceedings on behalf of the estate. This is not a procedural lapse capable of being cured under Article 159(2)(d) of the Constitution, but one that goes to the very root of the Respondent’s legal capacity to sue. Capacity to institute proceedings is a substantive prerequisite to the commencement of a competent suit. Where the person purporting to act on behalf of an estate lacks the requisite legal authority, the proceedings instituted are incompetent ab initio, for capacity is a condition precedent to the institution of a valid action and not a mere procedural technicality. I find that the Respondent lacked the capacity to file the suit in the lower court which should have been struck out. 2. And in those circumstances, I find no need of delving into the second issue of assessment of damages. 1. **The upshot of the matter is that the Appeal herein is allowed, the judgement of the trial court entered on 5/12/2024 is set aside and in its place the lower court suit Number CMCC E130** **of 2021 is struck out with costs to the Appellant.** **Judgment** delivered, dated and signed virtually at **Nairobi** this **24th** dayof **July,** 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** Leadys– Court Assistant No appearance for the Appellant. Miss Kuke Evaline for the Respondent.