Introduction
1. This is an appeal from the Ruling of the lower court in the Ruiru CMCC No. E070 of 2022 in which the trial magistrate dismissed a Citation dated 26th October 2022 seeking to compel the Respondent to apply for a grant of letters of administration, to enable the Appellant pursue a cause of action in tort against the Estate of Stephen Kinuthia Kamau, the Respondent’s deceased brother.
2. The Appellant (then a plaintiff) filed a suit on 22nd February 2021 in the Ruiru PMCC No. 77 of 2021 against one Stephen Kinuthia Kamau (deceased) seeking compensation for injuries suffered by her as a result of a road traffic accident which occurred on 17/04/2020 along Ruiru-Kiambu Road, involving motor vehicle registration No. KCN 623N which was then being owned by the defendant. Unknown to the Appellant, the said Stephen Kinuthia Kamau (deceased) had passed on 17th April 2020 as a result of the injuries suffered in the same accident.
3. On 7th July 2021, an application was made by an Advocate appointed by the insurers that the suit needed to be struck out since the same had been commenced against a deceased person. The Application was accordingly allowed on 30th September 2021 and the suit accordingly struck out.
4. Following the striking out of the suit, the Appellant commenced Citation proceedings against the Respondent herein in the Ruiru CMCC No. E070 of 2022 seeking to compel him, in his capacity as a brother of the deceased, to take letters of administration in respect of his deceased brother’s estate, to allow the Appellant sue the estate as a result of the said accident.
5. On 26th October 2022, the trial court dismissed the Appellant’s Citation proceedings against the Respondent on the basis that Appellant had not proved to the required standards that the Respondent was the only beneficiary to the estate of his deceased brother or that he ranked in priority in relation to the other beneficiaries of the estate. The court also found that pursuant to Section 2(3) of the Law Reform Act, an act of negligence cannot survive the alleged perpetrator and that the Appellant had not proven that the cause of action was pending as at the date of death.
The appeal
6. Aggrieved by the lower court’s decision, the Appellant filed the instant Appeal vide his Memorandum of Appeal dated 23rd May 2023 raising seven grounds of appeal that: -
i. The learned magistrate erred in fact and in law in dismissing the citation against the Respondent citing that there is no mention of an administrator or executor in the Law Reform Act.
ii. The learned magistrate erred in fact and in law in dismissing the citation against the Respondent citing that an act of negligence cannot survive the perpetrator.
iii. The learned magistrate erred in fact and in law in dismissing the citation against the Respondent citing that there was no cause of action pending against the citee's deceased’s brother as at the time of his death.
iv. The learned magistrate erred in law and fact in holding and implying that there was a necessity for the Citee to be proved to have been the only beneficiary of the deceased for the application to be successful.
v. The learned magistrate erred in law and fact in ignoring the documents before her on the Citee as the appropriate person to take out letters of administration.
vi. The learned magistrate erred in law in holding that for the application to be successful, the cause of action must have been pending at the date of the deceased's death.
vii. The learned magistrate erred in law in ignoring the submissions of the Citor in respect to the Citation.
7. Directions were given by this court that the appeal be canvassed by way of written submissions. The Appellant filed his submissions dated 3rd June 2024 whilst the Respondents are dated 4th June 2024.
Appellant’s submissions
8. In his submissions in this appeal, the Appellant however argued the appeal under two distinct heads. First, that the trial court erred in failing to find that the act of negligence cannot survive the deceased and that the deceased estate has the right to sue and be sued.
9. The Appellant asserted that under the Law Reform Act Cap 26 a tortious action survives a deceased since it is not one of those causes of action excluded under Section. (2) (1) which states as follows: -
“On the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate Provided that this section does not apply to causes of action for defamation or seduction or inducing one spouse to leave or remain apart from the other or to claims for damages on ground of adultery”
10. Citing the case of GABRIEL MACHARIA NJOROGE V ABSA BANK KENYA PLC [2021] EKLR, the Appellant submitted that the trial court erred in failing to have the Respondent cited to take out the letters of administration for purposes of defending the estate in an intended suit since being a brother to the deceased, he falls under category persons identified under Section 66(b) of the Law of Succession Act.
11. The Appellant therefore prayed that the Ruling of the trial court dated 27.4.2023 be set aside and that an order be made by this court allowing the Appellant’s citation against the Respondent.
Respondents’ Submissions
12. On his part, the Respondents supported the lower court’s Ruling of 27.4.2023 and submitted that a cause of action in a tort cannot survive a deceased where there were no proceedings against the deceased pending in court as at the date of death of such a deceased.
13. The Respondent asserted that in the instant case, there were no proceedings pending against his deceased’s brother for the alleged negligence prior or at the date of his death and therefore the claim by the Appellant did not fall within Section 2(3) (a) and (b) of the Law Reform Act.
14. It was further the Respondent’s position that he had not taken up any letters of administration in respect of the estate of his deceased brother and therefore, he could not be legally sued by the Appellant as a representative of his deceased brother’s estate.
15. Finally, the Respondent submitted that the trial court was right in its finding that the Appellant failed to prove that the Respondent ranked higher and in priority in relation to the other beneficiaries to the estate of his deceased brother as required under Section 66 of the Law of Succession Act.
16. The Respondent submitted that there are other persons beneficially interested in the estate of his deceased brother and who ranks higher than him in relation to the estate. Further, that no consent had been obtained from such persons as required under Rule 7(7) of the Probate and Administration Rules. The Respondent cited the case of Re Estate of Mukhobi Namonya (Deceased) [2020] eKLR in support of this argument.
17. Consequently, the Respondents urged this court to dismiss the appeal with costs in his favour.
Analysis and determination
18. This being a first appeal, the duty of this court is to reevaluate and reassess the evidence tendered at trial with a view of reaching its own conclusion on the issue of liability and on quantum. However, unlike the trial court, this court did not have the advantage of observing the demeanor of the witness and hearing their evidence first hand. I will therefore give due allowance for this. See the Court of Appeal decision in Peters vs Sunday Post Limited [1958] EA where the court stated that; -
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses……the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
19. At the same time, I will also bear in mind the fact that an appeal to this court is by way of retrial and this court is not bound by the findings of the trial court merely because it did not have the advantage of hearing the witnesses testify and seeing their demeanor as was held in the case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA where the court stated that: -
“...I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial court .....is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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..."
20. After reviewing the memorandum of appeal, the pleadings and proceedings from the lower court, and after considering the submissions by both parties in support of their respective positions, I note that the only two issues for consideration in this appeal are as follows; -
i. Whether a cause of action in tort can survive a tortfeasor
ii. Whether the in the circumstances of the case, the Respondent, being the deceased brother is the proper person to cite
Whether a cause of action in tort can survive a tortfeasor
21. It was the Appellant’s position at the lower court that the act of negligence on the part of the deceased giving rise to the accident in question can in law survive the deceased and that the deceased’s estate has the right to sue and be sued in respect of the same. The learned magistrate in dismissing the application ruled that a tortious claim cannot survive a deceased, where there were no proceedings pending as at the time of his death. A position that is supported by the Respondent.
22. Section 2 of the Law Reform Act, Cap 26 is the guiding statutory provision regarding the effect of death on causes of action. The provision states as follows; -
“2. (1) Subject to the provisions of this section, on the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate:
Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.
(2) Where a cause of action so survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person—
(a) shall not include any exemplary damages;
(b) in the case of a breach of promise to marry, shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry; and
(c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.
(3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person unless either—
(a) proceedings against him in respect of that cause of action were pending at the date of his death; or
(b) proceedings are taken in respect thereof not later than six months after his executor or administrator took out representation.
(4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Act, to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.”
23. From the above, it is evident that all causes of action (other than for defamation, seduction, inducing one spouse to leave or remain apart from the other, and adultery) subsisting against or vested in a deceased, survive against or for the benefit of his estate.
24. It therefore follows that a cause of action in tort, not being one of those specifically excluded by the proviso under section 2(1) of the Law Reform Act survives the tortfeasor.
25. In his submissions, the Respondent argued that a cause of action in tort may only survive against the estate of a deceased under special circumstance that proceedings against such a deceased, for the cause of action in question, were pending as at the date of his death. This cannot be the correct position in law.
26. Section 3(b) of the Law Reform Act recognizes that proceedings in tort may as well be taken against the estate of a deceased not later than six months following the issuance of the letters of administration. It therefore follows that it is not always the case that there must have been an existing suit against a deceased as at the date of his death, for proceedings in tort to maintainable against his estate.
27. In this case, it is not in dispute that there were no proceedings in tort pending against the deceased as at the date of his death. The law permits the Appellant to commence the proceedings in tort against the estate of the deceased within six months of issuance of letters of administration.
28. In the premises, the finding by the trial court that the cause of action in this case did not survive the deceased for sole reason that there was no proceeding pending against him as at the date of his death, cannot in law, be the correct position. The appeal therefore succeeds in that regard.
Whether the Respondent was the proper person to Cite
29. Rule 22(1) of the Probate and Administration Rules provides that: -
“A citation may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.”
30. Rule 22 is clear as to who is entitled to file a citation; that person must be of equal or the next in priority to the person cited. In Josiah Muli Wambua [2014] eKLR, Hon Musyoka, J explained that:
“In intestacy, citations issue only in cases where no petition has been lodged in court. Citations are intended to trigger the process of applying for letters of administration intestate in circumstances where the persons entitled to apply are not willing or are slow in moving the court in that behalf….” [Emphasis added]
31. In citation proceedings, it is critical for an applicant to show that he has bonafide interest in the estate of the deceased and that persons who are entitled to apply for letters of administration in respect of the estate of the deceased have not taken any steps to take out the same. See John Osicho v Hana Omolo Osewe & Another [2013] eKLR where Sitati J stated that: -
“A Citation is a document issued by the Probate Registry, whereby the person being the claimant (Citor) calls upon the person cited (Citee) to provide a reason why a particular step should not be taken; … Citations occur in both contentious and non-contentious probate. In non-contentious Probate, they serve the purpose of bullying along or fast tracking the issue of a grant of letters of administration.”
32. It therefore follows that the person to be cited must be one who is entitled to apply for letters of administration in respect of the estate of the deceased person, and must be of a higher or equal priority to the other beneficiaries of the estate.
33. While it is correct that Section 66 of the Succession Act gives court the final discretion as to the person or persons to whom a grant of letters of administration in respect of the estate of a deceased intestate is to be made, the provision directs that the court is to accept as a general guide the order of preference specified thereunder.
34. In the instant case, the Appellant cited the Respondent who is a brother to the deceased. Obviously, the Respondent ranks higher in priority as compared to the Appellant. However, to my mind, I do not think the Respondent is in the circumstances of this case entitled to apply for letters administration in respect of deceased brother’s estate. I say so because evidence on record reveals that the deceased’s father who ranks higher in priority is still alive and that no evidence on record to the effect that the deceased’s father renounced his right in that regard.
35. The Appellant in this appeal states that she is aware that the deceased was not married by the time of his death and that his father was still alive, though fairly aged. That she decided to cite the Respondent, being a brother to the deceased on account of the ill health of the deceased’s father.
36. I have perused the proceedings from the lower court but I have not seen any evidence to the effect that the deceased father who ranks high the priority list as prescribed under section 66 of the Act renounced his rights under the Act. Further, there is no evidence on record in support of the Appellant’s allegation that the deceased father is unwell and therefore unable to take up letters of administration in respect of his decease’s son estate.
37. In view of the above, I find that the trial court was right in its finding that the Appellant failed to prove that there were no other beneficiaries to the deceased estate, ranking higher than the Respondent herein. The Appeal therefore fails in this regard.
38. The appeal having been found to be partially successful, I direct that each party to bear their own costs.
39. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
24TH DAY OF OCTOBER 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
N/A…….. for the Appellant.
Ms. Mugasia………. for the Respondent.