Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealOtherCivil Appeal No. 52 & 53 of 1982

Gurbaksh Singh & Sons Ltd v Bank of Credit & Commerce International (Overseas) Ltd [1984] KECA 68 (KLR)

Court of Appeal
7 February 1984
1,308 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
This is an interlocutory order of the Court of Appeal at Nairobi in two consolidated appeals (Civil Appeals Nos. 52 and 53 of 1982) arising from rulings of the High Court (Chesoni J, as he then was) of August 20, 1982 dismissing the appellants' applications for temporary injunctions to restrain the respondent bank from enforcing a debenture and first mortgage pending trial. Before the appeal could be heard, the second appellant, Ajit Gurbaksh Singh, died in London on October 24, 1983. Counsel for the appellants moved under rules 42 and 96 of the Court of Appeal Rules to substitute either the widow, Harbans Kaur, or the two appointed executors (Amrik Singh Gurbaksh Singh and Joginder Singh Gurbaksh Singh, the third and fifth appellants) as the legal representative of the deceased, and to continue or defer the hearing accordingly. The court examined the definition of 'legal representative' in section 2 of the Civil Procedure Act and rule 96, observing that no grant of probate had been sought and that the proposed substitutes presented difficulties: the widow was not an appointed executor, and one executor had suffered mental illness with no evidence of recovery and was outside the jurisdiction. The court declined to substitute the widow or Amrik alone, made no order for the joint substitution of the executors pending proof of the will and grant of probate, gave liberty to restore that part of the application on notice, and held that the consequential application to continue or defer the hearing abated. The costs of the application were reserved.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 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. 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. 3.Whether the appeal hearing should continue with substituted parties or be deferred pending a grant of probate

Key legal issues

#
01

Who is the 'legal representative' of a deceased appellant for purposes of substitution under rule 96 of the Court of Appeal Rules

Holding

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.

Reasoning

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.

p. 2
02

Whether the appeal hearing could continue with substituted parties or be deferred pending probate

Holding

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.

Reasoning

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.

p. 2

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. 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. 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. 3.Liberty was given for that part of paragraph (i) of the motion to be restored on notice
  4. 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. 5.Costs of the application were reserved

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

p. 2

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

p. 2

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.
p. 2Executors before probate as legal representatives
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.
p. 2Rule 96 - appeal does not abate on death
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.
p. 2Final order - substitution deferred pending probate
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.
p. 2Final order - abatement of ancillary application
The costs of this application are reserved. Orders accordingly.
p. 3Final orders and costs

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.