FREDERICK WACHIRA NDEGWA (SUBSTITUTING NDEGWA WACHIRA (DECEASED) vs RICHARDA WANJIKU NDANJERU & ANOTHER [1997] KECA 249 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the decision in Roman C Hintz v Mwangombe Mwakima was wrongly decided and should be overruled
- 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
#Standing to sue under the Law Reform Act for an intestate's estate
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.
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.
Whether Hintz v Mwakima should be overruled
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.
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.
Whether long-standing but wrongly decided precedent should be left undisturbed
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.
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.
Legal principles established
#- 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
#- 1.The appeal succeeds on the competence of the action under the Law Reform Act
- 2.The damages awarded to the respondents under the Law Reform Act are set aside with costs
- 3.The damages awarded under the Fatal Accidents Act, including Kshs. 6,100 for funeral and incidental expenses, are affirmed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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
#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
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
#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.
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.
That Section confers that power on personal representatives and on them alone.
“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”
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.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.