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Court of AppealPartially AllowedCivil Appeal (Mombasa)· [1994] KECA 72 (KLR)

Mollo Edilio v Abdullahi H. Khalil & another [1994] KECA 72 (KLR)

Court of Appeal of Kenya
21 January 1994
JGJ.M. GachuhiMMM.G. MuliPhilip Kiptoo TunoiP.K. Tunoi
1,375 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that foreign currency damages convert to shillings on the payment date, and that foreign grants must be resealed before claiming for a deceased's estate.

What this practically means

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Executive summary

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The appellant, an Italian resident, sued in the Mombasa High Court after his wife died in a 1986 road accident on the Mombasa/Malindi Road, claiming under the Fatal Accidents Act for himself and his son and under the Law Reform Act as personal representative of the estate. Shields, J awarded 120 million Lira for dependency and 4.5 million Lira for funeral expenses, but dismissed the Law Reform Act claim because the Italian grant of letters of administration had not been resealed in Kenya under section 77 of the Law of Succession Act. The trial judge fixed the conversion date of the foreign currency award at 25th March 1986, the date the right to compensation accrued, following Celine v Voltuno. On appeal, the Court of Appeal (Gachuhi, Muli and Tunoi, JJA) accepted that the stated date was a mistake for the actual accident date, but held that English law had moved on since Celine: following Miliangos v George Frank (Textiles) Ltd, and relying on McGregor on Damages and Lord Wilberforce's speech, the court held that Kenyan courts may award in foreign currency and that the appropriate conversion date is the date of payment, to avoid the plaintiff losing through currency fluctuation and litigation delay. The conversion date set by the trial judge was set aside and substituted accordingly. The appeal against dismissal of the Law Reform Act claim failed, the court applying Troustik Union International v Mbeyu on the want of locus standi absent a Kenyan grant. The appellant, having succeeded in part, received half the costs of the appeal.

Key legal issues

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01

Date of conversion of foreign currency awards

Holding

The date of conversion of a foreign currency damages award into Kenya Shillings is the date of payment, not the date the right to compensation accrued.

Reasoning

Following the shift in English law effected by Miliangos v George Frank (Textiles) Ltd, the court recognised that currency fluctuation over the years between accrual, trial and appeal could leave a plaintiff inadequately compensated. Given an eight-year delay, the Kenya shilling had depreciated and foreign currency appreciated; fixing conversion at the end of the process best secures the creditor the value bargained for.

p. 3
02

Locus standi to sue under the Law Reform Act without a Kenyan grant

Holding

A person holding only a foreign grant not resealed in Kenya has no locus standi to bring a claim under the Law Reform Act for the benefit of the deceased's estate.

Reasoning

Section 77 of the Law of Succession Act requires resealing of foreign grants. Without letters of administration in the claimant's own name effective in Kenya, there is no authority to sue on behalf of the estate. The court applied its own earlier five-judge decision in Troustik Union International v Mbeyu. The Fatal Accidents Act claim in the appellant's own behalf was unaffected.

p. 3

Legal principles established

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  • Kenyan courts are not restricted to giving judgments in local currency and may award damages in foreign currency.
  • The appropriate date for converting a foreign currency damages award into local currency is the date of payment, not the date the right to compensation accrued.
  • A personal representative who has not obtained letters of administration (including resealing of a foreign grant) has no locus standi to claim for the benefit of the deceased's estate.

Court orders

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  1. 1.The date fixed by the trial judge for conversion of the foreign currency award (25th March 1986) is set aside and substituted with the date of payment
  2. 2.The appeal against dismissal of the claim under the Law Reform Act (cap 26) fails
  3. 3.The appellant, having succeeded in part, is awarded half of the costs of the appeal
On appeal from
High Court of Kenya, Mombasa
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the High Court (first appeal on quantum and locus standi; specific constitutional/statutory basis not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mollo Edilio v Abdullahi H. Khalil & another [1994] KECA 72 (KLR)", Case Analysis (1994). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/72/eng@1994-01-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.