Wakilii

McCoy v Allibhai (Civil Appeal No. 3 of 1947)

East African Court of Appeal · [1947] EACA 4 · 1947 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal from decision of H.M. Supreme Court of Kenya affirming Resident Magistrate's Court decision
Decision
Appeal struck out by Court of Appeal for want of jurisdiction; Supreme Court judgment affirming Resident Magistrate's decision stands

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court of Appeal struck out the appeal for want of jurisdiction under section 74 of the Kenya Civil Procedure Ordinance, which prohibits second appeals where the subject matter does not exceed £50 unless special leave is first obtained. The Supreme Court had earlier held that agreements by executors to receive remuneration beyond the terms of the will are viewed with great caution and will not be enforced where they tend to dissipate the estate or involve an element of pressure.

Outcome

Appeal struck out by Court of Appeal for want of jurisdiction; Supreme Court judgment affirming Resident Magistrate's decision stands

Facts

J. J. McCoy was appointed executor under the will of Pieter Alexander van Breda. The will made no express provision for executor's remuneration, though McCoy received a legacy of cattle which could not be found. McCoy refused to act as executor unless remunerated. Two persons interested in the estate, Ismail Allibhai and M. G. Wahl, agreed in writing to pay him Sh. 1,000 in exchange for his undertaking the executorship. McCoy obtained probate and wound up the estate. Wahl paid his proportionate share of Sh. 300. Allibhai refused to pay his share of Sh. 700. McCoy died in 1939. His legal representative sued Allibhai's estate in 1943 to enforce the agreement. The Resident Magistrate held the agreement unenforceable as contrary to public policy. The Supreme Court affirmed. McCoy's representative appealed to the Court of Appeal.

Issues

  1. Whether a second appeal lies under section 74 of the Kenya Civil Procedure Ordinance when the value of the subject matter does not exceed £50 and special leave has not been obtained.
  2. Whether an agreement by an executor to perform his duties in exchange for remuneration beyond what is provided in the will is enforceable or contrary to public policy.

Orders

  • Appeal struck out without prejudice to any application for special leave under Rule 9.
  • No order made on costs by the Court of Appeal.
  • Supreme Court dismissed the first appeal with costs.

Rules and key headnotes

Civil Procedure — Second Appeals — Monetary Threshold — Section 74 Kenya Civil Procedure Ordinance
Under section 74 of the Kenya Civil Procedure Ordinance, no second appeal lies in any suit when the amount or value of the subject matter of the original suit does not exceed £50 unless special leave has been first obtained from the second appellate court.
Succession & Estates — Executors — Remuneration — General Principle
It is a general principle that a personal representative is entitled to no allowance, at law or in equity, for personal trouble and loss of time in the execution of his duties.
Succession & Estates — Executors — Agreements for Remuneration — Enforceability
Agreements by executors or trustees to receive remuneration beyond the terms of the trust are watched by the court with exceeding jealousy and will be enforced only with great caution, as they give an undue advantage to the trustee to distress the beneficiary.
Succession & Estates — Executors — Agreements for Remuneration — Element of Pressure
Bargains for executor's remuneration must be freely made and not submitted to from pressure. Where an executor refuses to act unless remunerated, the element of pressure may render the agreement unenforceable.
Succession & Estates — Executors — Agreements for Remuneration — Tendency to Dissipate Estate
Agreements for executor's remuneration ought to be discouraged where they tend to dissipate the estate, even if the executor completes the administration.

Legislation cited (1)

  • Kenya Civil Procedure Ordinance s.74

Cases cited (6)

  • Robinson v Pett (1734) 3 P Wms 251
  • Re Sherwood (1840) 3 Beav 338
  • Douglas v Archbutt (1858) 2 De G & J 148
  • Ayliffe v Murray (1740) 2 Atk 58
  • Barrett v Hartley (1866) 12 Jur NS 426
  • Gould v Fleetwood (1732) 2 Eq Cas Abr 453

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

McCoy v Allibhai (Civil Appeal No. 3 of 1947) [1947] EACA 4 (1 January 1947)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.