Mzizima Transporters v. Alimohamed Osman Civ. Case 113-D-68; 20/6/70; Makame Ag. J.

Mzizima Transporters v. Alimohamed Osman Civ. Case 113-D-68; 20/6/70; Makame Ag. J.

This is an application by the plaintiffs, Mzizima Transporters, who had sued Alimohamed Osman, now deceased, on some promissory notes. Unconditional leave to defend was granted shortly after that the defendant died. The present application is for, inter alia, the Administrator-General to be granted Letters of Administration so that he may be brought on record as the deceased’s legal personal representative and defend the suit.

            Held: (1) “It s a misconception to make this application under section 6 of the Administrator-General’s Ordinance, Cap. 27, which provides for an application of this nature only if “danger is to be apprehended of misappropriation deterioration or waste of such assets …..” As Mr. Rahim for the Administrator-General rightly pointed out, hat has not been averred, and I would add that there is nothing on record to suggest that such is the position in this matter. The application under section 6 of Cap. 27 must therefore fail.” (2) “The requirements of section 40 of the Probate and Administration Ordinance, Cap. 445 (under which this application is alternatively made) have not been strictly complied with. It is not enough to aver that no members of the deceased’s relatives are unable or unwilling to act, which is not the same thing as just not having applied for the Letters.” (3) “But taking into consideration the chequered history of this suit and the particular circumstances, I feel, and so decide, that it is just and fair that this application should be allowed.”