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Court of AppealPartially AllowedCivil Appeal No. Nai. 269 of 1997

FREDERICK WACHIRA NDEGWA (SUBSTITUTING NDEGWA WACHIRA (DECEASED) vs RICHARDA WANJIKU NDANJERU & ANOTHER [1997] KECA 249 (KLR)

Court of Appeal
19 October 1993
3,943 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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In Kenya, only someone with a grant of letters of administration can sue on behalf of a deceased person's estate; dependants can still claim for their own loss.

What this practically means

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Executive summary

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A five-judge bench of the Court of Appeal, unusually constituted at the parties' joint request so that it could reconsider a prior three-judge decision, heard an appeal from Bosire J's award of damages under both the Law Reform Act and the Fatal Accidents Act to two widows of John Katembe, who died after being knocked down by a car driven by the second appellant. Negligence having been admitted at trial, the only substantive battle was whether the respondents, who held no letters of administration, had standing to sue under the Law Reform Act for the benefit of the deceased's intestate estate. The Court held that under the Law of Succession Act, which applies universally to deaths after 1 July 1981, only personal representatives - executors or administrators holding grants - may enforce a deceased's preserved chose in action. The respondents could competently claim loss of dependency under the Fatal Accidents Act, but not the estate's claim under the Law Reform Act. The Court subjected the majority decision in Hintz v Mwakima, which had permitted next of kin to sue without a grant, to detailed criticism, found it confused and wrongly decided, and formally overruled it, noting that High Court decisions and Otieno v Ougo had already undermined it. It also rejected the argument that Hintz should survive because it had stood for nine years. The appeal was allowed in part: the Kshs. 50,000 award under the Law Reform Act was set aside with costs, while the Fatal Accidents Act award and Kshs. 6,100 for funeral expenses were affirmed.

Questions the Court framed

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

  1. 1.Whether the respondents, as widows and dependants who had not obtained letters of administration, had standing to sue under the Law Reform Act for the benefit of the deceased's estate
  2. 2.Whether the decision in Roman C Hintz v Mwangombe Mwakima was wrongly decided and should be overruled
  3. 3.Whether the Hintz decision, having stood for nine years, should be left undisturbed on the ground that it had been acted upon

Key legal issues

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01

Standing to sue under the Law Reform Act for an intestate's estate

Holding

Only personal representatives within the meaning of the Law of Succession Act may enforce the deceased's preserved chose in action; the respondents, being neither executors nor administrators, lacked standing.

Reasoning

The Law of Succession Act applies universally to intestate succession of persons dying after 1 July 1981. Section 82 confers the power to enforce the deceased's causes of action on personal representatives alone, and Section 3 defines a personal representative as an executor or administrator, an administrator being a person to whom a grant of letters of administration has been made. The respondents did not hold such a grant and could only sue as dependants under the Fatal Accidents Act.

p. 4
02

Whether Hintz v Mwakima should be overruled

Holding

The majority reasoning in Hintz, that an intestate's property is transmitted to next of kin by death, is confused and unsupported by law; the case is overruled.

Reasoning

The Court found no warrant for Chesoni JA's statement that an intestate's property is transmissible by death to next of kin, equating personal representatives with blood relatives. Under the Law of Succession Act, personal representatives are persons who obtain probate or letters of administration, not blood relatives however close. The trial judge was bound by the Act and was led into error by reliance on Hintz.

p. 6
03

Whether long-standing but wrongly decided precedent should be left undisturbed

Holding

No; a plainly wrong decision should not be kept alive merely because of the passage of time, particularly where inferior courts have consistently declined to follow it.

Reasoning

The respondents invoked the principle that a long-standing decision should not be disturbed. The Court held that Hintz had never been accepted law, had a disturbed life, and had been consistently defied rather than followed by courts bound by stare decisis. No rights could be shown to have been founded on it, so the common error maxim could not properly be invoked.

p. 8

Legal principles established

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  • Only a personal representative, that is an executor or a person to whom a grant of letters of administration has been made under the Law of Succession Act, may enforce by action a deceased intestate's chose in action preserved under the Law Reform Act; dependants suing qua dependants lack standing.
  • The Hintz decision, which permitted a next of kin to sue under the Law Reform Act without letters of administration, is no longer good law and is overruled.
  • A wrongly decided precedent will not be preserved merely because it has stood for a long time and been acted upon; the maxim communis error facit jus does not apply to a decision that is plainly wrong.

Court orders

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  1. 1.The appeal succeeds on the competence of the action under the Law Reform Act
  2. 2.The damages awarded to the respondents under the Law Reform Act are set aside with costs
  3. 3.The damages awarded under the Fatal Accidents Act, including Kshs. 6,100 for funeral and incidental expenses, are affirmed

The bench

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

majority

Wrote the judgment

majority
majority
majority
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 172 of 1987
Jurisdiction invoked
Appeal from a judgment and decree of the High Court of Kenya at Mombasa; constituted as a bench of five judges at the parties' request to consider reversing a prior decision of a three-judge bench

Relief refused

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Any challenge to the quantum of damages awarded under the Fatal Accidents Act

No complaint on quantum was addressed to the Court and the trial judge's approach to the paucity of evidence was held correct

p. 2

Costs

The damages awarded under the Law Reform Act were set aside with costs; no other costs order is stated in the judgment.

Quotable passages

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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 Conclude, therefore that the damages awarded in favour of the respondents in the sum of Kshs. 50,000under the Law Reform was wrong and ought to be set aside with costs. We do so order.
p. 8Final orders - setting aside the Law Reform Act award
we respond positively to that invitation and hold that the Hintz case is no longer good law, if it ever was. We think it must go. and the decision of Bosire, J. which was founded on it, must cc with it.
p. 8Overruling of Hintz and the decision below
That Section confers that power on personal representatives and on them alone.
p. 3Exclusive standing of personal representatives under Section 82 of the Law of Succession Act
“The administrator is not entitled to bring an action as administrator before he has taken letters of administration if he does the action is incompetent at the date of it inception”
p. 7Competence of actions brought before grant of letters of administration
we would affirm the damages awarded to the respondents under the Fatal Accidents Act as well as the modest Sumof kshs.6,100 awarded them for funeral and incidental expenses.
p. 3Affirmation of the Fatal Accidents Act award

Issues in the judgment

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minor

The case number on the cover reads 'CIVIL APPL NO. NAI. 269 OF 97' while the appeal is from a 1989 High Court judgment delivered in 1993, suggesting the year in the case number may be misprinted.

minor

The judgment states the respondents 'brought an action' on the 10th March, 1957, which is inconsistent with the accident date of 10th April, 1984 and the suit number H.C.C.C. No. 172 of 1987; the date appears to be a typographical error.

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, "FREDERICK WACHIRA NDEGWA (SUBSTITUTING NDEGWA WACHIRA (DECEASED) vs RICHARDA WANJIKU NDANJERU & ANOTHER [1997] KECA 249 (KLR)", Case Analysis (1993). Civil Appeal No. Nai. 269 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/249/eng@1997-10-30

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