Zakayo Richard Chesoni, James Onyiego Nyarangi, Alister Arthur Kneller
Roman Karl Hintz v Mwang'ombe Mwakima  eKLR
Hintz v Mwakima
Court of Appeal, at Mombasa July 26, 1984
Kneller, Chesoni & Nyarangi Ag JA
Civil Appeal No 72 of 1983
(Appeal from the High Court at Mombasa, Bhandari J)
Succession – intestate succession – property of intestate – chose in action in the form of a cause of action – how transmitted and enforced after death of intestate – personal representative – legal representative – heir of the estate of a child – whether such heir capable of suing on behalf of such estate without grant of letters of administration – whether Indian Succession Act 1865 applicable – whether Law of Succession Act (cap 160) applicable – Law Reform Act (cap 26).
Criminal Practice and Procedure - parties – parties to suit – suit for the benefit of an intestate’s estate – how such a suit is instituted – persons by whom such suit may be instituted - heir of the estate of deceased child – whether such heir capable of suing on behalf of such estate without grant of letters of administration - Law Reform Act (cap 26).
Statute – interpretation of statutes – Fatal Accidents Act (cap 32) – Law Reform Act - Law of Succession Act - causes of action arising under Fatal Accidents Act and Law Reform Act – nature of - whether such causes of action separate and distinct - suit for the benefit of an intestate’s estate under Law Reform Act - whether heir capable of suing on behalf of such estate without grant of letters of administration.
Minor – suit by minor – how such suit is instituted – Civil Procedure Rules order XXXI rule 1(1).
Mwakima Mwangombe, a child of the age of four years, died as a result of a traffic accident when a motor vehicle driven by the appellant collided with him on May 1, 1980. In May 1982, the respondent, Mwangombe’s father, filed a suit against the appellant claiming damages under the Law Reform Act (cap 26). In his defence, the appellant contended that the respondent had no cause of action against him under that Act as he had not obtained letters of administration to the estate of the deceased child. It was further submitted that on May 1, 1980 (the day of the deceased’s death), the estates of Africans, who were not Mohammedans, were governed by the Indian Succession Act 1865, under which letters of administration were necessary before a right to any part of the property of a person who had died intestate could be established. In answer to the objection, the respondent argued that the deceased’s cause of action had survived his death and was vested in his estate for the estate’s benefit and that the respondent was not an administrator or legal representative but was a personal representative capable of filing the action without having first obtained letters of administration with respect to the deceased’s estate. The preliminary objection was rejected by the court which held that the respondent was entitled to sue the appellant by reason of not only section 2(1) of the Law Reform Act but also the procedure in section 7 of the Fatal Accidents Act (cap 32). The appellant appealed to the Court of Appeal.
1. A cause of action in negligence arose and vested in the deceased child at the moment he was injured by the vehicle driven by the appellant and the measure of damages, if he could prove the appellant’s liability, would include fair compensation for his injuries and such loss of expectation of life as was caused to him by that tort.
2. The deceased’s cause of action was property in the form of a chose in action and it was vested in him while he lived. If the deceased had survived the accident, then, since he was a minor, his suit would have had to be instituted in his name by a person referred to as his “next friend” under order XXXI rule 1(1) of the Civil Procedure Rules.
3. An intestate’s property is transmissible to his personal representative such as his next of kin although it may also vest in his legal representative, such as executor or administrator. The deceased’s cause of action against the appellant which comprised his chose in action was his property and the deceased’s property was upon his death transmitted to and not vested in his father, the respondent.
4. A right of action under the Law Reform Act (cap 26) is separate and distinct from a right of action under the Fatal Accidents Act (cap 32) and each Act is independent of the other.
5. Under the Law Reform Act, the right of action is for the benefit of the deceased person’s estate, the money recovered falls into the estate and is subject to the will, if any, of the deceased person and to the claims of his creditors whereas under the Fatal Accidents Act, the right of action is for the benefit of the dependants of the deceased whether the action is brought by the deceased’s personal representative or by the dependant in his personal capacity.
6. The trial judge therefore need not have applied the Fatal Accidents Act as the preliminary objection had been raised under the Law Reform Act.
7. Section 190 of the Indian Succession Act 1865 (which applied to Kenya until July 1981, when it was repealed by the Succession Act (cap 160)), provided that no right to the property of an intestate person could be established unless letters of administration had first been granted, applied to a person seeking to establish a right or claim to part or the whole of a deceased person’s property. The respondent in this case was suing on the deceased’s cause of action and was not seeking to establish a right to the deceased’s property therefore the section did not therefore apply to him.
8. A parent or next of kin or a personal representative can act as a representative of a deceased person and file an action for the benefit of the estate of such person without grant of probate or letters of administration to the estate. If it was intended that an action under the Law Reform Act would be brought by an executor or an administrator, specific provision would have been made to that effect particularly so because that Act commenced ten years after the Fatal Accidents Act.
9. (Kneller JA, dissenting)
The estate of the deceased was subject to the written law which applied to it on the day on which he died. As the plaint was filed on May 25, 1982, it was subject to the provisions of the succession Act hence the administration of the deceased’s estate had to proceed, as far as possible, in accordance with that Act.
10. The right of action vested in the deceased passed under the Law Reform Act to his personal representative and was for the benefit not of the deceased’s dependants but of his estate. Under section 2 of the Law of Succession Act, a personal representative is someone who has been granted letters of administration to the estate of the deceased intestate.
11. The sole heir or one of the heirs of a child may in many instances be his or her father but without a grant, whether general or limited, of letters of administration intestate, the heir cannot represent that estate and bring an action on its behalf because until the grant is obtained by someone, the estate and the legal chose in action are vested in the court. The estate and the legal chose in action automatically pass to the administrator when the grant is obtained.
12. The respondent did not, at common law or in equity or under any written law before or after the Law of Succession Act of Kenya, have the right to bring this action under the Law Reform Act because the chose in action had not vested in him when he filed the plaint or at all and, consequently, the action was and always remained incompetent.
By majority decision, appeal dismissed.
The points raised in the dissenting judgment of Kneller JA were revisited by the Court of Appeal sitting in Nairobi in the case of Trouistik Union International and Ingrid Ursula Heinz v Jane Mbeyu and Alice Mbeyu Civil Appeal 145 of 1990. The bench of five comprised of Apaloo CJ, Kwach, Cockar, Omolo & Tunoi JJA (as they were then) in a judgment delivered on October 19, 1993 overturned the majority decision of the court in this case. The Court of Appeal held that this case was wrong and that though it had stood for nine years, it had to be overturned.
1. Hilton v Sutton Steam Laundry (1946) 115 LJK BD 33, 35 CA
2. Burns v Campbell  2 All ER 965 (CA)
3. The Vera Cruz (No 2) (1884) 9P 96
4. Benjawa Jembe v Priscilla Nyondo (1912) 4 EACA 160, 161
5. Miney Frances v Samuel Bartholomew Kuri as Administrator of the Estate of Samuel Nelson Bartholomew deceased (1951) 24 KLR 1
6. Re Maangi  EA 637, 639 (K)
7. In the matter of the estate of the late Karichwa Pola, Probate and Administration Cause 25 of 1982 (unreported)
8. In the matter of the estate of the late Thomas Kazungu Kavivya Kazau Probate and Administration Cause 100 of 1982 (unreported)
9. Ingall v Moran (1944) 113 LJKB 298, 299 (CA)
10. Rainford v Knowles (1888) 59 LT 359
11. Davies v Powell Duffryn Associated Collierries Ltd  1 ALL ER 657
1. Munkman, J., (1980) Damages for Personal Injuries and Death, London: Butterworths, 6th Edn p 135
2. James, J.S., (1971) Stroud’s Judicial Dictionary of Words & Phrases, London: Sweet & Maxwell, 4th Edn
3. Paruck, P.L., (1939) The Indian Succession Act being Act No XXXIX of 1925, Bombay: N.M.Tripathi Ltd 2nd Edn p 294
1. Law Reform Act (cap 26) sections 2(1), 4(5), 5(2)
2. Indian Succession Act 1865 sections 190, 187,191, 331
3. Indian Succession Act 1925 section 213
4. Fatal Accidents Act (cap 32) sections 4, 7
5. Workmen’s Compensation Act (cap 236)
6. Civil Procedure Rules (cap 21 Sub Leg) order VII rule 4; order XXXI rule 1(1)
7. Law Reform Act (Miscellaneous Provisions) 1934 [UK]
8. Carriage by Air Act 1932 [UK]
9. Law of Succession Act (cap 160) section 82
10. Application to Natives of the Indian Acts Ordinance 1903
11. Amendments to Applied Indian Acts Ordinance No 10 of 1907
12. Indian Acts (Amendments) Ordinance (cap 2) section 9(1) (Revised Edition Laws of Kenya, 1948)
13. Probate and Administration Act 1881[INDIA]
14. Constitution of Kenya section 26
15. Civil Procedure Act (cap 21) section 2
16. Trustee Act 1850 [UK]
17. East Africa Order in Council 1897
18. Administration of Estates Act 1925 [UK]
Mr Inamdar for Appellant
Mr Mbogholi-Msagha for Respondent