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Court of AppealDismissedCivil Application (Mombasa) - Notice of Motion dated 16th August 1999 (intended appeal from Civil Appeal No. 18 of 1998)

Mohammed Abdulrehman Mohamed Hatimy v Kalidas Kanji (Africa) Limited & another [2000] KECA 65 (KLR)

Court of Appeal of Kenya
27 January 2000
364 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a man's attempt to revive his late father's appeal because he had no legal proof he could act for the estate.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Mombasa delivered by Kwach JA on 27th January 2000 on a Notice of Motion dated 16th August 1999 brought under rules 4 and 83 of the Court of Appeal Rules. The applicant, Mohamed Abdulrehman Mohamed Hatimy, sought extension of time to lodge a notice of appeal and file a record of appeal against a decision of Ang'awa J given on 15th February 1996, and leave to institute the intended appeal in his own name as legal representative of the deceased Sheikh Abdulrehman Mohamed Hatimy, whose prior appeal (Civil Appeal No. 18 of 1998) had been struck out as incompetent on 21st July 1999. The supporting affidavit was sworn by the applicant's advocate, Mr. Ushwin Khanna, who deposed that the applicant was a beneficiary and the legal representative of the estate. The Court held that the advocate had sworn to matters of which he had no direct knowledge and on which he could not be cross-examined, citing David Kinyanjui & Others v Meshack Omari Monyoro. More decisively, counsel conceded that no application for a grant of representation had ever been made and no evidence of representation was produced. The Court therefore found that the applicant had no locus standi and was a busybody, and dismissed the application with costs on that ground alone. The binding proposition for lower courts is that a claimant to representative capacity must evidence a grant of representation, and that advocates should not swear affidavits to contested facts within the client's knowledge.

Questions the Court framed

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

  1. 1.Whether the applicant has locus standi to bring the application as the legal representative of the deceased appellant
  2. 2.Whether extension of time should be granted to lodge a notice of appeal and file a record of appeal

Key legal issues

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01

Locus standi of an applicant claiming to be a legal representative of a deceased party

Holding

The application fails because the applicant, having made no application for a grant of representation and adduced no evidence of representation, has no locus standi and is a busybody.

Reasoning

The applicant asserted in the supporting affidavit that he was a beneficiary and the legal representative of the deceased former appellant. However, counsel conceded that no application for a grant of representation had been made by the applicant or anyone else, and no evidence of representation was placed before the Court. Without a grant, the applicant could not step into the shoes of the deceased appellant whose appeal had been struck out, and the application for extension of time and leave to institute the appeal in a representative capacity could not stand.

p. 2
02

Improper practice of counsel swearing affidavits on contested facts

Holding

The supporting affidavit sworn by the applicant's advocate was defective because it deposed to matters of which the advocate had no direct knowledge and on which he could not be cross-examined.

Reasoning

The supporting affidavit was sworn by Mr. Ushwin Khanna, advocate for the applicant, who deposed that the applicant was a beneficiary and legal representative of the estate. The Court, citing David Kinyanjui & Others v Meshack Omari Monyoro, noted that counsel gave no explanation for swearing to facts outside his own knowledge. This defective affidavit compounded the absence of any evidentiary support for the claim to representation, reinforcing the dismissal.

p. 2

Legal principles established

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  • A person who claims to sue or apply as legal representative of a deceased person must place before the court evidence of a grant of representation; a bare assertion without a grant confers no locus standi.
  • An advocate should not swear a supporting affidavit deposing to matters of fact within the client's knowledge on which the advocate cannot be cross-examined.

Court orders

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  1. 1.The application is dismissed with costs

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya
Jurisdiction invoked
Rules 4 and 83 of the Court of Appeal Rules (extension of time to lodge notice of appeal and file record of appeal)

Relief refused

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Extension of time to lodge a notice of appeal and file a record of appeal, and leave to institute the appeal as legal representative of the deceased

The applicant produced no evidence of a grant of representation and therefore had no locus standi; his advocate swore the supporting affidavit on matters of which he had no direct knowledge

p. 2

Costs

The application is dismissed with costs (costs to the respondent)

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.

I am accordingly of the opinion that the applicant has no locus standi to bring this application and is just a busybody.
p. 2Locus standi - applicant claiming to be legal representative without a grant
On this ground alone the application must fail and it is accordingly dismissed with costs.
p. 2Disposition - application dismissed with costs
Nor did Mr. Khanna place before me any evidence to support the applicant's claim to be the legal representative of the estate of the deceased.
p. 2Evidential burden on a claimant to representation

Issues in the judgment

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minor

The judgment is a single-judge ruling delivered by Kwach JA; the applicant's name is printed as 'Mohamed Adbulrehman Mohamed Hatimy' in the opening paragraph but the signature block reads 'R. O. KWACH', and the intended appeal's respondent is not identified in the text.

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, "Mohammed Abdulrehman Mohamed Hatimy v Kalidas Kanji (Africa) Limited & another [2000] KECA 65 (KLR)", Case Analysis (2000). Civil Application (Mombasa) - Notice of Motion dated 16th August 1999 (intended appeal from Civil Appeal No. 18 of 1998). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/65/eng@2000-01-27

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