Morjaria v Abdalla [1984] KECA 44 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that heirs can replace deceased parties in an appeal using limited grants, but sloppy paperwork cost them money.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a validly appointed legal representative must be in place before the court may substitute a party to an appeal under rule 96
- 2.Whether an appeal is a 'suit' within the meaning of paragraph 14 of the fifth schedule to the Law of Succession Act so as to found a limited grant for representation in the appeal
- 3.Whether a grant ad colligenda bona can be used to appoint a person to represent a deceased party in an appeal
- 4.Whether the two limited grants made by Aganyanya J and Masime J were valid and sufficient to enable the applicants to be joined as parties
Key legal issues
#Whether an appeal is a 'suit' for purposes of limited grants of representation
An appeal is a civil proceeding commenced in a manner prescribed and is therefore a suit within section 2 of the Civil Procedure Act and paragraph 14 of the fifth schedule
The court examined the definition of 'suit' in section 2 of the Civil Procedure Act and dictionary meanings, and adopted the reasoning of Briggs JA in Bhagat Singh v Chauhan, holding that an appeal is a new proceeding commenced when instituted. It found it would be illogical and futile if paragraph 14 of the fifth schedule did not relate to a pending appeal as well as a suit.
Effect of a grant ad colligenda bona
Such a grant is confined to collecting and preserving perishable or precarious estate property and cannot authorise representation of the deceased in litigation
Relying on rule 36 of the Probate and Administration Rules and Whitehead v Palmer, the court held the purpose of the grant is collection of perishable property where a full grant cannot be made in time. It is not a representation grant, and where the operative words of a defective grant nevertheless constituted a valid paragraph 14 grant, the court was prepared to treat it as such.
Whether the court may regularise an inverted or defective application for substitution
The court's powers under rule 96 were wide enough to allow substitution despite the mismatch between the motion and the grants, but the applicants bore the costs
The grants and the motion were expressed the other way round as to which deceased each applicant represented. The court declined to go behind the High Court orders generally, but found the operative words of the Aganyanya J grant valid under paragraph 14, and exercised its discretion under rule 96 to do what was clearly right, penalising the gross error in the form of the motion on costs.
Legal principles established
#- An appeal is a civil proceeding commenced in a manner prescribed and therefore falls within the definition of a 'suit', so the High Court may grant limited representation for the purpose of a pending appeal.
- Rule 96 permits the court to appoint as a party to an appeal only a person who has been properly made a legal representative by the High Court under the Law of Succession Act.
- A grant ad colligenda bona is limited to collecting and preserving the estate and cannot be used to confer the right to represent a deceased person in a suit or appeal.
Court orders
#- 1.Bhavin and Lalita to be made parties to the appeal in place of Ranchod himself
- 2.Bhavin to be made a party in place of Ranchod in so far as he was an appellant in his representative capacity for Hariben
- 3.The applicants to pay the respondent's costs of the application in any event
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- null
- Jurisdiction invoked
- Rules 42 and 96 of the Court of Appeal Rules (Civil Procedure Rules)
Relief refused
#Reserving costs of the application to abide the result of the appeal
The court considered that the gross error in the form of the motion disentitled the applicants from such indulgence
Costs
The applicants to pay the respondent's costs of this application in any event (not reserved to, or abiding, the result of the appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently the High Court has power under paragraph 14 to grant representation for the purpose of a pending appeal.
Rule 96, despite the use of the word “shall” nevertheless only enables this court to appoint as a party to the appeal a person who has been properly made a legal representative by the High Court in exercise of its powers under the Act.
We therefore so order. But in view of the gross error in the form of the application we consider that the costs therefore should not be reserved or abide the result the result of this appeal, as we might otherwise have decided, but the applicants should pay the costs of this application to the respondent in any event.
We do no more than observe finally that it would appear that Mr Gautama himself is described in the body of the document as the person moving the court. Orders accordingly.
Issues in the judgment
#The judgment records that the motion and the two limited grants were expressed the other way round as to which deceased each applicant was appointed to represent
The transcript reproduces the operative clause of the Masime J grant as appointing Bhavin to represent Hiraben, but the surrounding text elsewhere refers to the grant as being in his favour in terms that the judgment itself notes are inverted
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Morjaria v Abdalla [1984] KECA 44 (KLR)", Case Analysis (1984). Civil Appeal No 1 of 1982. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/44/eng@1984-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.