[2010] KEHC 2197 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

Civil Appeal 18 of 2004

(Appeal arising from BGM CM CC No.424 of 2000)

YOHANA OMUMIA ……………APPELLANT

(Suing on behalf of the Estate of PIUS WERE ABONYO)

~VRS~

MUMIAS SUGAR COMPANY LIMITED……………DEFENDANT

JUDGMENT

The Appellant Yohana Omumia appeals against the judgment of Bungoma Senior Resident Magistrate relying on six grounds contained in the memorandum of appeal dated 20/5/2004 which raise three pertinent issues.

a)Whether the Appellant had locus standi to sue the Respondent.

b)Whether the Appellant was entitled to damages under the Law Reform Act.

c)Whether the Appellant and his brother were entitled to damages under Fatal Accidents Act.

Mrs. Chunge took the court through the grounds of appeal.She submitted that the Appellant was the son of the deceased.He obtained letters al colligenda bona which conferred upon him the capacity to sue on behalf of the deceased’s family and on his own behalf.Judgment on liability was entered by consent at the ratio of 60:40 with the Appellant (or the deceased) bearing 60% liability while the Respondent Mumias Sugar Co. Ltd shouldered 40%.The magistrate Mr. S. Mungai found that the letters al colligenda bona could not confer upon the Appellant the capacity to sue and therefore ruled that the Appellant had no locus standi.The appellant argues that the letters al colligenda bona were obtained for the sole purpose of filing the suit and were therefore adequate giving locus standi to the Appellant.

Mr. Owinyi for the Respondent argued that the Appellant had no locus standi to file the suit or to benefit from the estate of the deceased.He referred the court to some decisions where it was held that letters of administration al colligenda bona do not confer to the holder any benefit from the estate of the deceased.The Respondent submitted that the Appellant who was aged 33 years and his brother aged 29 years would not depend on their 65 year old father.It ought to have been the father depending on the sons.It was not right to award the two brothers damages for loss of dependency.According to the counsel, the land left by the deceased should be used profitably for the benefit of the family.

The facts of the case were that the deceased Pius Were Obonyo died on 11/01/2000 in an accident along Mumias road.He was lawfully walking on the road when he was hit by a vehicle belonging to the Respondent, Mumias Sugar Co. Ltd.The Appellant obtained letters of al colligenda bona and sued the Respondent for damages on behalf of himself and the family of the deceased.Parties recorded consent on liability at 40:60 with the deceased bearing 60% and the Respondent 40%.Liability is therefore not an issue in this appeal.The Plaintiff prayed for damages for loss of dependency under the Fatal Accidents Act and for loss of expectation of life under the Law Reform Act and also special damages.In its submissions the Defendant strongly contested the issue of loss of dependency which it argued was not proved.The issue of locusstandi was also raised that the Appellant ought to have obtained a full grant and not al colligenda bona.The magistrate relied on authorities presented by the Defendants on the two issues and dismiss the claim for damages under both the Fatal Accidents Act and the Law Reform Act.

This court was referred to the same decisions by the Respondent.In the case of the ESTATE OF KAHAWA SUKARI LTD AND THE MATTER OF THE COMPANIES ACT, WINDING UP CAUSE NO.23 OF 2002 MILIMANICOMMERCIAL COURT, Justus Aaron Ringera held that the grant of administration ad colligenda bona did not confer on the grantee the status of a personal representative of the deceased.In this cause, the grantee sought to be admitted as a member of the company under section 28 of the Company’s Act in place of her deceased husband.The claim failed on the premise that she had no locus standi.

In the case of EAST AFRICAN SEAL LTD –VRS- JOEL MUGA KISII HIGH COURT CIVIL APPEAL NO.175OF 2004, it was held by Lady Justice J. Gacheche in an appeal with similar facts with the one before me, that agrant of administration ad colligenda bonadid not confer upon the grantee the locus standi to pursue a claim of damages.The appeal was allowed and the judgment of the lower court set a side.

I note that the Appellant hadbeen served with the Respondent’s submissions in the lower court but did not reply to them.The magistrate observed this omission and thought that it was a serious one given the serious nature of the matter to the Appellant.The Appellant did not refer this court to any decision to support their argument that where a grant of administration ad colligenda bona indicates that it is for the sole purpose of filing a suit, the same is sufficient to establish locus.I would not find such a contention plausible in that the purpose of a grant under section 67 (1) of the Succession Act is to;

“collect, get and receive the estate and do such …………. As may be necessary for the preservation of the same until further representation is granted.”

Such a grant would not entitle the grantee locus standi or a benefit on the estate of the deceased.

The claim under the Law Reform is dependenton whether the Appellant obtained letters of administration.Even though liability was agreed on, the Appellant had to satisfy this legal requirement.It follows that damages under the Act were not awardable.

The two decisions are relevant to this appeal and I agree with the Respondent herein that the magistrate was right in his finding that the Appellant had no locus standi to bring the suit.

On the issue of loss of dependency, the deceased was aged 65 years at the time of his death.The Appellant testified that he and his brother depended on the deceased and shared his monthly income of Ksh.6000/= begotten from tilling the land.The Respondent argued that the deceased would have been the one dependent on his sons who were young and energetic to work and earn a living.The land was still available after the death of deceased for his sons to till and benefit like the deceased used to do.To this extent, I agree with the Respondent. The Appellant did not adduce evidence to convince the court that he and his brother were dependent on the deceased.He did not call his brother to testify.It is my finding that the magistrate made a correct finding that loss of dependency was not proved to the standards required.The claim for this head of damages was rightly dismissed by the magistrate.

Having evaluated the evidence and made my own findings, I find that the appeal has no merit and I dismiss it accordingly.Each party will meet its own costs of this appeal.

F. N. MUCHEMI

JUDGE

Judgment dated and delivered on the 6thday of July, 2010 in the presence of Mr. Abok for the Appellant.

F. N. MUCHEMI

JUDGE