NJUGUNA KIUMU vs SIMON P. GICHURU [1999] KECA 118 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the appellant had died and no one replaced him, voiding the entire case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal was competent where the named appellant died before the trial and no legal representative was substituted under Order 23 rule 3(1) of the Civil Procedure Rules or rule 93 of the Court of Appeal Rules
- 2.Whether the proceedings before the High Court, including the final decision, were a nullity given that the plaintiff was dead at the date of trial
Key legal issues
#Competence of an appeal where the appellant died before trial and no substitution of a legal representative occurred
The appeal was incompetent because the appellant died on 25th November 1987 and no legal representative was made a party in the superior court suit or in the appeal.
Order 23 rule 3(1) of the Civil Procedure Rules and rule 93 of the Court of Appeal Rules require that where a party dies, the legal representative be made a party to the suit or appeal. No such steps were taken. Without a living plaintiff or appellant, there was no competent party before either court, rendering the appeal incompetent and liable to be struck out.
Effect of the death of the plaintiff on the High Court proceedings and judgment
The proceedings before the High Court judge, including the final decision, were declared a nullity because there was no plaintiff in the suit, the appellant having died before the date of trial.
A suit cannot be prosecuted by a dead person; a cause of action survives to personal representatives only upon their substitution. Since the appellant was dead at trial and no legal representative had been joined, the trial proceedings lacked a competent plaintiff. The court therefore declared the entire proceedings and the final decision a nullity, in addition to striking out the appeal.
Legal principles established
#- Where a party to a suit or appeal dies and no legal representative is brought on record under Order 23 rule 3(1) of the Civil Procedure Rules or rule 93 of the Court of Appeal Rules, the appeal is incompetent and must be struck out.
- Proceedings conducted in the name of a plaintiff who was already dead at the date of trial, including the resulting final decision, are a nullity.
Court orders
#- 1.The appeal is struck out with no order as to costs
- 2.It is declared that the proceedings before the Judge, including his final decision, were a nullity
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Court of Appeal appellate jurisdiction under the Constitution/Civil Procedure; appeal from the superior court (specific provision not stated in the judgment)
Relief refused
#Prosecution of the appeal by or on behalf of the deceased appellant
No steps were taken to cause the legal representative of the deceased appellant to be made a party either in the suit or in the appeal
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This appeal is incompetent because the named appellant Njuguna Kiumu died on 25th November, 1987 and no steps were taken under Order 23 rule 3(1) of the Civil Procedure Rules or rule 93 of the Rules of this Court to cause the legal representative of Njuguna Kiumu to be made a party
That being the case this appeal is hereby struck out with no order as to costs.
As the appellant was already dead on the date of trial, there was really no plaintiff in the suit. Those proceedings before the Judge including his final decision were a nullity and it is so declared.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NJUGUNA KIUMU vs SIMON P. GICHURU [1999] KECA 118 (KLR)", Case Analysis (1999). Civil Appeal No. 268 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/118/eng@1999-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.