Gurbaksh Singh & Sons Ltd v Bank of Credit & Commerce International (Overseas) Ltd [1984] KECA 68 (KLR)
The bottom line
#When a Kenyan appellant dies mid-appeal, the Court of Appeal will only substitute someone who properly represents the deceased's estate—usually after probate is granted.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction, before grant of probate, to substitute as legal representative of a deceased appellant his widow or the appointed executors of his will
- 2.Whether one or both of the proposed substitutes is the 'legal representative' of the deceased within the meaning of rule 96 and section 2 of the Civil Procedure Act (cap 21)
- 3.Whether the appeal hearing should continue with substituted parties or be deferred pending a grant of probate
Key legal issues
#Who is the 'legal representative' of a deceased appellant for purposes of substitution under rule 96 of the Court of Appeal Rules
The 'legal representative' is a person who in law represents the estate of the deceased person; where there is no grant of probate, the court may in appropriate circumstances accept executors of the will before probate, but not where questions of capacity, attestation and jurisdiction of the proposed substitutes remain unresolved.
The court looked to section 2 of the Civil Procedure Act (cap 21) which defines 'legal representative' as a person who in law represents the estate of a deceased person. Noting that no one had applied for probate or a limited grant, and that of the three persons proposed one was not an appointed executor, another had been mentally ill (with no evidence of recovery and was outside the jurisdiction), the court found the proposals unsafe and declined to make the substitution, leaving liberty to restore the application once probate was obtained.
Whether the appeal hearing could continue with substituted parties or be deferred pending probate
Once substitution was declined and no order made on the joint substitution, the application to continue the hearing or defer it pending production of a grant of probate abated.
The application in paragraph (ii) of the motion was dependent on the substitution sought in paragraph (i). Since the court declined to substitute the widow or Amrik alone and made no order for the joint substitution of the executors pending probate, the ancillary application in paragraph (ii) had no foundation and consequently abated. Liberty was given to restore paragraph (i) on notice once probate was obtained.
Legal principles established
#- An appeal does not abate on the death of an appellant; the court must cause the legal representative of the deceased to be made a party in place of the deceased on the application of any interested person.
- The court may, in appropriate circumstances, accept as a legal representative of a deceased appellant the executors of his will before grant of probate.
Court orders
#- 1.The court declined to substitute Harbans Kaur, the widow, or Amrik, the third appellant on his own, as the legal representative of the deceased second appellant Ajit Singh
- 2.No order was made on the application to substitute Amrik and Joginder jointly as legal representatives, pending proof of the written will and grant of probate to those two appointed executors
- 3.Liberty was given for that part of paragraph (i) of the motion to be restored on notice
- 4.The application in paragraph (ii) for the hearing of the appeal to continue with substituted parties, or be deferred until the executors produce a grant of probate, abates
- 5.Costs of the application were reserved
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court, Nairobi
- Jurisdiction invoked
- Rules 42 and 96 of the Court of Appeal Rules
- Consolidated with
- Civil Appeal No. 53 of 1982
Relief refused
#Substitution of Harbans Kaur (widow) or Amrik Singh Gurbaksh Singh alone as legal representative of the deceased second appellant
Of the three alternatives presented, one was not an appointed executor and another had a history of mental illness without evidence of recovery and was beyond the jurisdiction
Substitution of Amrik and Joginder jointly as legal representatives before grant of probate
No order could be made pending proof of the written will and grant of probate to the two appointed executors
Costs
The costs of this application are reserved.
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.
We are not to be taken as stating that in no circumstances will the court accept as a legal representative of a deceased appellant the executors of his will before grant of probate.
An appeal shall not abate on the death of the appellant or the respondent but the court shall, on the application of any interested person, cause the legal representative of the deceased to be made a party in place of the deceased.
So far as the application to replace the deceased second appellant with Amrik and Joginder, the third appellant, together is concerned we make no order pending proof of the written will and grant of probate of it to those two appointed executors.
This being so, the application in para ii for the hearing of the appeal to continue between the appellant with the substituted ones and the respondent, or deferred until the executors produce the grant of probate, abates.
The costs of this application are reserved. Orders accordingly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gurbaksh Singh & Sons Ltd v Bank of Credit & Commerce International (Overseas) Ltd [1984] KECA 68 (KLR)", Case Analysis (1984). Civil Appeal No. 52 & 53 of 1982. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/68/eng@1984-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.