(Being an Appeal against the Judgment by Hon. J.O. Manasses (RM) in Chief Magistrate’s Court at Sirisia PMCC No. E057 of 2023, Delivered on 21 st March 2024).
1. Before delving into this appeal, I find it apposite to set out these significant principles as my plumber line. Lord Simon’s speech in Watt Vs. Thomas [1947] AC, 484 at p. 485, it is recorded that an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies, is entitled to great weight . Lord Simon further said, that a part from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.
2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.
3. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.
4. In the primary suit, the appellant sued the Respondent following a road traffic accident that occurred on 7 th day of January, 2023 involving the deceased and the defendant Motor Vehicle KCL 850M SCANIA BUS and as a result of the accident, the deceased sustained fatal injuries.
5. Masawe Phyllis (PW1) adopted her witness statement together with her list of documents, recorded and filed on 23 rd March, 2023 as her evidence in chief. The documents were produced as Exhibits 1 to 18 exhibits respectively. The witness further said that the deceased was her husband. Under cross examination, the witness said that the husband used to give her a sum of Kshs20,000/ per month. The witness said that the total sum spent on the funeral was Kshs100,000/ which included the contribution by the neighbours. They hired a vehicle to ferry the body to Uganda and paid Kshs5000/ as car hire.
6. Watira Reneo PW2 ) adopted his witness statement recorded on 23 rd March, 2026 in his evidence. Under cross examination, the witness said that he was a passenger in the accident Motor vehicle and upon arrival at Namundi near Lwakhakha, the driver was on high speed and at a corner, he lost control of the accident Motor Vehicle and hit three people. Under cross examination, the witness said that he lost a bus ticket at the accident. Upon close of the Respondents’ case, the Appellants closed their case without calling any witness.
7. In the Judgement delivered by the Learned Magistrate, the Appellants were aggrieved with the findings and proffered an Appeal. In their Petition of Appeal, they relied on the following grounds;
a. That the learned Trial Magistrate erred in law and fact by disregarding the submissions of the 1 st and 3 rd Defendants that the suit ought to have been struck out on account of locus standi of the legal representative of the deceased.
b. That the learned Trial Magistrate erred in law and fact by dis regarding the submissions by the 1 st and 3 rd Defendants as the Legal representative of the deceased as he had letters of administration ad litem issued to one legal representative despite being a continuing trust as minors were among the beneficiaries.
c. That the learned Trial Magistrate erred in law and fact when the trial magistrate ruled that the 1 st and 3 rd Defendants ought to have filed a formal application to have the suit struck out or raised the same during the pendency of the suit.
d. That the learned Trial Magistrate erred in law and fact by awarding the Respondent a sum of Kshs2,188,944/ which was excessive in the circumstances.
e. That the learned Trial Magistrate erred in law and fact in using the minimum wages of Kshs15,201/ without proof of earnings being tendered by the plaintiff.
f. That the learned Trial Magistrate erred in law and fact in awarding pain and suffering of Kshs100,000/ despite the deceased having died instantly after the accident, an award which was excessive.
g. That the learned Trial Magistrate erred in law and fact in awarding loss of expectation of life of Kshs100,000/ without considering the vicissitudes and vagaries of life, an award which was excessive.
h. That the learned Trial Magistrate exercise of discretion in assessment of quantum was injudicious.
8. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
9. I have with singleness of my mind perused the grounds of appeal and note that they overlap one another to an extent and collapsed them into three issues for determination; whether or not the Respondent had locus standi to institute these proceedings , whether or not the appellant proved his case on a balance of probability and whether or not quantum can be disturbed.
Standard of proof in Civil matters:
10. The Evidence Act is clear enough upon whom the burden of proof lies. Section 107 provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any facts, it is said that the burden of proof lies on that person. Equally section 109 of the same Act further provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact lies on any particular person. Therefore, it is not in every case where the defendant had not called evidence that the plaintiff’s case must invariably be deemed to be proved on a balance of probabilities.
11. Denning J. in Miller Vs Minister of Pensions [1947] 2 ALL ER discussing the burden of proof said that the degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’ , the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.
12. In Siraj Din Vs Ali Mohamed Khan (1957) EA 25 , it was held that the quantum of proof required in civil litigations is not such as resolves all doubt whatsoever but such as establishes a preponderance of probability in favour of one party or the other.
13. It was uncontroverted evidence by two witnesses and in particular PW2 who sat next to the driver of the accident motor vehicle, that the accident took place at a corner. At the time, the driver was on high speed and suddenly lost control of the said Motor vehicle and hit three people including the deceased, who perished on the spot.
14. It must be recalled that the appellants did not call any witness to controvert the Respondent’s case. Therefore, on liability, the Appellant did not offer any evidence to rebut the PW2’s testimony. A party failing to call witnesses was extensively dealt with by G.V. Odunga J in the case of Linus Ng’ang’a Kiongo & 3 Others Vs Town Council Of Kikuyu . The judge citing the decisions in the case of Motex Knitwear Ltd –Vs- Gopitex Knitwear Millls Ltd Hcc No. 834 of 2002 emphasized that failure by the defendant in that case to call witness meant that not only does the evidence tendered by the plaintiff’s case stand unchallenged but also that the claims made by the defendant in the defence remain unsubstantiated. I hold the Appellant 100% liable for the accident.
Principle of Locus standi
15. Locus Stand i is a Latin term, which literally means ‘ place of standing’ and refers to the right of a particular party to bring an action a suit. Black’s Law Dictionary 10 th Edition at Paragraph 1084 defines the term ‘ Locus Standi ” as follows: - ‘ The right to bring an action or to be heard in a given forum.” It is trite law that pleadings filed in court by persons with no locus standi are void ab initio and the court would have no jurisdiction in such actions. In Ibrahim Vs Hassan & Charles Kimenyi Macharia , [2019] eKLR the Court observed as follows : - “Locus standi is basically the right to appear or be heard in court or other proceedings. That means if one alleges the lack of the same in certain court proceedings, he means that party cannot be heard, despite whether or not he has a case worth listening. The issue herein is whether the Applicant lacks the requisite locus standi to seek relief from the court to revoke the grant in question issued to the Respondent. In my view, issues as regards locus standi are critical preliminary issues which must be dealt with and settled before dwelling into other substantive issues”.
16. As I understand it, the main lamentation by the Appellant in respect to locus standi is that Limited Grant of Letters of Administration Ad Litem was issued to PW1 and yet there are minors to the deceased which violates section 58(1) of the Law of Succession Act Cap 160 Laws of Kenya. It is submitted that issuance of Letters of administration intestate in our scenario, cannot be issued to only one administrator. On account of this, the Respondent lacks jurisdiction to commence these proceedings. I have perused the decisions relied on by the Appellant both in subordinate courts as well as in this appeal. I find them distinguishable from the matter at hand and shortly, I will explain why. Section 54 of the Law of Succession Act, Chapter 160 of the Laws of Kenya states; '54. A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act. 'underline supplied.
17. It is therefore undisputed, that limited grants issue for particular purposes and their significance comes to pass once full grant is made. That is the reason why I believe they are not gazette. There is a difference between limited letters of administration and letters of administration intestate. For our purposes and have handle of the matter in a very simple manner, I would like to set them as provided under 5 th schedule;
a. Limited Grant of Letters of Administration Ad Litem.
b. Limited Grant of Letters of Administration Ad Colligenda bona,
c. Limited Grant of Letters of Administration Ad de bonis non ,
d. Limited Grant of Letters of Administration durante minore estate,
e. Limited Grant of Letters of Administration durante absentia,
f. Limited Grant of Letters of Administration pendente lite.
18. The Limited Grant of Letters of Administration Ad Litem is provided for under rule 14 of the fifth schedule to the Law of Succession Act Cap 160 Laws of Kenya and deals with administration of an Estate limited to a suit. The said provision states as follows:- 'When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution.' From the foregone, it is clear that a Limited Grant of Letters of Administration Ad Litem is usually used when the Estate of a deceased person is required to be represented in court proceedings. (See the case of Greenway Vs Mc Kay (1911) 12 CLR 310 ).
19. It must be reckoned, from the reading of section 58(1) of the laws of succession act cap 160 Laws of Kenya that no mention of the fact that for matters of court proceedings touching the deceased, the grant may be full or limited. Given the fact that limited letters of administration ad litem is not gazetted, it follows therefore, that once a decree has been issued and in particular for our case, it becomes part of the assets of the deceased, which can only distributed after a full grant is made. It further trickles down to this hard fact of life, any expense that may deplete this asset has to be sanctioned by the court and presumably after the full grant as this is continuing trust.
20. I must say that courts do not engage in hypothesis. It cannot be assumed that the deceased only asset was the award in this case, nor can it be assumed that the deceased an African man, had other assets such as land, houses, monies in the account, chattels. It is possible he had or did not. We cannot approach matters from a fixed angle. All done and said, this is a bridge to be crossed in the fullness of time.
Damages under Law Reform Act and Fatal Accidents Act:
21. In respect to damages under Law Reform Act and under Fatal Accidents Act, the law is distilled and need not be re-emphasized, even though sometimes, it behoves the court to restate it depending on the circumstances of each case.
22. In Gammel versus Wilson (1981) 1 ALL ER 578 Lord Scarman spoke of the assessment of damages in such circumstances; he said: - The correct approach in law to the assessment of damages in these cases presents, my Lords, no difficulty, though the assessment itself often will. The principle must be that the damages should be fair compensation for the loss suffered by the deceased in his lifetime. The appellants in Gammell’s case were disposed to argue, by analogy with damages for loss of expectation of life, that, in the absence of cogent evidence of loss, the award should be a modest conventional sum. There is no room for a ‘conventional’ award in a case of alleged loss of earnings for the lost years. The loss is pecuniary. As such, it must be shown, on the facts found, to be at least capable of being estimated. If sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach a mathematical certainty, the court must make the best estimate it can. In civil litigation it is the balance of probabilities which matters. In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award, not even a ‘conventional’ award should ordinarily be made. Even so, there will be exceptions: a child television star, cut short in her prime age of five, might have a claim; it would depend on the evidence. A teenage boy or girl, however, as in Gammell’s case may well be able to show either actual employment or real prospects, in either of which situation there will be an assessable claim. In the case of a young man, already in employment (as was young Mr Furness), one would expect to find evidence on which a fair estimate of loss can be made. A man well established in life, like Mr Picket, will have no difficulty. But in all cases it is a matter of evidence and a reasonable estimate based on it. (see page 593).
23. In MwanziaVs Ngalali Mutua and Kenya Bus Services (Msa) Ltd & Another which was quoted with approval in Albert Odawa v Gichimu Gichenji NKU HCCA No. 15 of 2003[2007] eKLR Justice Ringera was of the following view: “ The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”
24. The same reasoning was adopted in the earlier decision in Mary Khayesi Awalo & Another Vs Mwilu Malungu & Another ELD HCCC No. 19 of 1997 [1999] eKLR where Nambuye J., stated that: - “As regards the income of the deceased there are no bank statements showing his earnings. Both counsel have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books.”
25. Back to the case at hand, there is enough evidence that the deceased was a boda boda rider. However, there was no evidence of the earnings that will assist assessment using the multiplicand theory. In such scenarios, the court is at liberty to use the global approach or a minimum wage principle in the assessment of damages.
26. In disposal, the court makes a finding that the appeal lacks merit and the same is dismissed. I uphold the findings of the learned trial Magistrate.
Delivered virtually this 21 st July, 2026 in the presence of the Appellant, the Respondent and Christine- Court Assistant.
Hon. R.K. Ondieki
Judge.
1 | Page
1. Before delving into this appeal, I find it apposite to set out these significant principles as my plumber line. Lord Simon’s speech in Watt Vs. Thomas [1947] AC, 484 at p. 485, it is recorded that an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies, is entitled to great weight . Lord Simon further said, that a part from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.
2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.
3. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.
4. In the primary suit, the appellant sued the Respondent following a road traffic accident that occurred on 7 th day of January, 2023 involving the deceased and the defendant Motor Vehicle KCL 850M SCANIA BUS and as a result of the accident, the deceased sustained fatal injuries.
5. Masawe Phyllis (PW1) adopted her witness statement together with her list of documents, recorded and filed on 23 rd March, 2023 as her evidence in chief. The documents were produced as Exhibits 1 to 18 exhibits respectively. The witness further said that the deceased was her husband. Under cross examination, the witness said that the husband used to give her a sum of Kshs20,000/ per month. The witness said that the total sum spent on the funeral was Kshs100,000/ which included the contribution by the neighbours. They hired a vehicle to ferry the body to Uganda and paid Kshs5000/ as car hire.
6. Watira Reneo PW2 ) adopted his witness statement recorded on 23 rd March, 2026 in his evidence. Under cross examination, the witness said that he was a passenger in the accident Motor vehicle and upon arrival at Namundi near Lwakhakha, the driver was on high speed and at a corner, he lost control of the accident Motor Vehicle and hit three people. Under cross examination, the witness said that he lost a bus ticket at the accident. Upon close of the Respondents’ case, the Appellants closed their case without calling any witness.
7. In the Judgement delivered by the Learned Magistrate, the Appellants were aggrieved with the findings and proffered an Appeal. In their Petition of Appeal, they relied on the following grounds;
a. That the learned Trial Magistrate erred in law and fact by disregarding the submissions of the 1 st and 3 rd Defendants that the suit ought to have been struck out on account of locus standi of the legal representative of the deceased.
b. That the learned Trial Magistrate erred in law and fact by dis regarding the submissions by the 1 st and 3 rd Defendants as the Legal representative of the deceased as he had letters of administration ad litem issued to one legal representative despite being a continuing trust as minors were among the beneficiaries.
c. That the learned Trial Magistrate erred in law and fact when the trial magistrate ruled that the 1 st and 3 rd Defendants ought to have filed a formal application to have the suit struck out or raised the same during the pendency of the suit.
d. That the learned Trial Magistrate erred in law and fact by awarding the Respondent a sum of Kshs2,188,944/ which was excessive in the circumstances.
e. That the learned Trial Magistrate erred in law and fact in using the minimum wages of Kshs15,201/ without proof of earnings being tendered by the plaintiff.
f. That the learned Trial Magistrate erred in law and fact in awarding pain and suffering of Kshs100,000/ despite the deceased having died instantly after the accident, an award which was excessive.
g. That the learned Trial Magistrate erred in law and fact in awarding loss of expectation of life of Kshs100,000/ without considering the vicissitudes and vagaries of life, an award which was excessive.
h. That the learned Trial Magistrate exercise of discretion in assessment of quantum was injudicious.
8. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
9. I have with singleness of my mind perused the grounds of appeal and note that they overlap one another to an extent and collapsed them into three issues for determination; whether or not the Respondent had locus standi to institute these proceedings , whether or not the appellant proved his case on a balance of probability and whether or not quantum can be disturbed.
Standard of proof in Civil matters:
10. The Evidence Act is clear enough upon whom the burden of proof lies. Section 107 provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any facts, it is said that the burden of proof lies on that person. Equally section 109 of the same Act further provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact lies on any particular person. Therefore, it is not in every case where the defendant had not called evidence that the plaintiff’s case must invariably be deemed to be proved on a balance of probabilities.
11. Denning J. in Miller Vs Minister of Pensions [1947] 2 ALL ER discussing the burden of proof said that the degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’ , the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.
12. In Siraj Din Vs Ali Mohamed Khan (1957) EA 25 , it was held that the quantum of proof required in civil litigations is not such as resolves all doubt whatsoever but such as establishes a preponderance of probability in favour of one party or the other.
13. It was uncontroverted evidence by two witnesses and in particular PW2 who sat next to the driver of the accident motor vehicle, that the accident took place at a corner. At the time, the driver was on high speed and suddenly lost control of the said Motor vehicle and hit three people including the deceased, who perished on the spot.
14. It must be recalled that the appellants did not call any witness to controvert the Respondent’s case. Therefore, on liability, the Appellant did not offer any evidence to rebut the PW2’s testimony. A party failing to call witnesses was extensively dealt with by G.V. Odunga J in the case of Linus Ng’ang’a Kiongo & 3 Others Vs Town Council Of Kikuyu . The judge citing the decisions in the case of Motex Knitwear Ltd –Vs- Gopitex Knitwear Millls Ltd Hcc No. 834 of 2002 emphasized that failure by the defendant in that case to call witness meant that not only does the evidence tendered by the plaintiff’s case stand unchallenged but also that the claims made by the defendant in the defence remain unsubstantiated. I hold the Appellant 100% liable for the accident.
Principle of Locus standi
15. Locus Stand i is a Latin term, which literally means ‘ place of standing’ and refers to the right of a particular party to bring an action a suit. Black’s Law Dictionary 10 th Edition at Paragraph 1084 defines the term ‘ Locus Standi ” as follows: - ‘ The right to bring an action or to be heard in a given forum.” It is trite law that pleadings filed in court by persons with no locus standi are void ab initio and the court would have no jurisdiction in such actions. In Ibrahim Vs Hassan & Charles Kimenyi Macharia , [2019] eKLR the Court observed as follows : - “Locus standi is basically the right to appear or be heard in court or other proceedings. That means if one alleges the lack of the same in certain court proceedings, he means that party cannot be heard, despite whether or not he has a case worth listening. The issue herein is whether the Applicant lacks the requisite locus standi to seek relief from the court to revoke the grant in question issued to the Respondent. In my view, issues as regards locus standi are critical preliminary issues which must be dealt with and settled before dwelling into other substantive issues”.
16. As I understand it, the main lamentation by the Appellant in respect to locus standi is that Limited Grant of Letters of Administration Ad Litem was issued to PW1 and yet there are minors to the deceased which violates section 58(1) of the Law of Succession Act Cap 160 Laws of Kenya. It is submitted that issuance of Letters of administration intestate in our scenario, cannot be issued to only one administrator. On account of this, the Respondent lacks jurisdiction to commence these proceedings. I have perused the decisions relied on by the Appellant both in subordinate courts as well as in this appeal. I find them distinguishable from the matter at hand and shortly, I will explain why. Section 54 of the Law of Succession Act, Chapter 160 of the Laws of Kenya states; '54. A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act. 'underline supplied.
17. It is therefore undisputed, that limited grants issue for particular purposes and their significance comes to pass once full grant is made. That is the reason why I believe they are not gazette. There is a difference between limited letters of administration and letters of administration intestate. For our purposes and have handle of the matter in a very simple manner, I would like to set them as provided under 5 th schedule;
a. Limited Grant of Letters of Administration Ad Litem.
b. Limited Grant of Letters of Administration Ad Colligenda bona,
c. Limited Grant of Letters of Administration Ad de bonis non ,
d. Limited Grant of Letters of Administration durante minore estate,
e. Limited Grant of Letters of Administration durante absentia,
f. Limited Grant of Letters of Administration pendente lite.
18. The Limited Grant of Letters of Administration Ad Litem is provided for under rule 14 of the fifth schedule to the Law of Succession Act Cap 160 Laws of Kenya and deals with administration of an Estate limited to a suit. The said provision states as follows:- 'When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution.' From the foregone, it is clear that a Limited Grant of Letters of Administration Ad Litem is usually used when the Estate of a deceased person is required to be represented in court proceedings. (See the case of Greenway Vs Mc Kay (1911) 12 CLR 310 ).
19. It must be reckoned, from the reading of section 58(1) of the laws of succession act cap 160 Laws of Kenya that no mention of the fact that for matters of court proceedings touching the deceased, the grant may be full or limited. Given the fact that limited letters of administration ad litem is not gazetted, it follows therefore, that once a decree has been issued and in particular for our case, it becomes part of the assets of the deceased, which can only distributed after a full grant is made. It further trickles down to this hard fact of life, any expense that may deplete this asset has to be sanctioned by the court and presumably after the full grant as this is continuing trust.
20. I must say that courts do not engage in hypothesis. It cannot be assumed that the deceased only asset was the award in this case, nor can it be assumed that the deceased an African man, had other assets such as land, houses, monies in the account, chattels. It is possible he had or did not. We cannot approach matters from a fixed angle. All done and said, this is a bridge to be crossed in the fullness of time.
Damages under Law Reform Act and Fatal Accidents Act:
21. In respect to damages under Law Reform Act and under Fatal Accidents Act, the law is distilled and need not be re-emphasized, even though sometimes, it behoves the court to restate it depending on the circumstances of each case.
22. In Gammel versus Wilson (1981) 1 ALL ER 578 Lord Scarman spoke of the assessment of damages in such circumstances; he said: - The correct approach in law to the assessment of damages in these cases presents, my Lords, no difficulty, though the assessment itself often will. The principle must be that the damages should be fair compensation for the loss suffered by the deceased in his lifetime. The appellants in Gammell’s case were disposed to argue, by analogy with damages for loss of expectation of life, that, in the absence of cogent evidence of loss, the award should be a modest conventional sum. There is no room for a ‘conventional’ award in a case of alleged loss of earnings for the lost years. The loss is pecuniary. As such, it must be shown, on the facts found, to be at least capable of being estimated. If sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach a mathematical certainty, the court must make the best estimate it can. In civil litigation it is the balance of probabilities which matters. In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award, not even a ‘conventional’ award should ordinarily be made. Even so, there will be exceptions: a child television star, cut short in her prime age of five, might have a claim; it would depend on the evidence. A teenage boy or girl, however, as in Gammell’s case may well be able to show either actual employment or real prospects, in either of which situation there will be an assessable claim. In the case of a young man, already in employment (as was young Mr Furness), one would expect to find evidence on which a fair estimate of loss can be made. A man well established in life, like Mr Picket, will have no difficulty. But in all cases it is a matter of evidence and a reasonable estimate based on it. (see page 593).
23. In MwanziaVs Ngalali Mutua and Kenya Bus Services (Msa) Ltd & Another which was quoted with approval in Albert Odawa v Gichimu Gichenji NKU HCCA No. 15 of 2003[2007] eKLR Justice Ringera was of the following view: “ The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”
24. The same reasoning was adopted in the earlier decision in Mary Khayesi Awalo & Another Vs Mwilu Malungu & Another ELD HCCC No. 19 of 1997 [1999] eKLR where Nambuye J., stated that: - “As regards the income of the deceased there are no bank statements showing his earnings. Both counsel have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books.”
25. Back to the case at hand, there is enough evidence that the deceased was a boda boda rider. However, there was no evidence of the earnings that will assist assessment using the multiplicand theory. In such scenarios, the court is at liberty to use the global approach or a minimum wage principle in the assessment of damages.
26. In disposal, the court makes a finding that the appeal lacks merit and the same is dismissed. I uphold the findings of the learned trial Magistrate.
Delivered virtually this 21 st July, 2026 in the presence of the Appellant, the Respondent and Christine- Court Assistant.
Hon. R.K. Ondieki
Judge.
1 | Page