Henry Waithaka Gitu & another v Samuel Ndungu Gitu & 3 others [2000] KECA 53 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a deceased person's legal representatives can be joined in an appeal even if the deceased was never formally a party before dying.
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 legal representatives of a deceased intended respondent may be joined as parties to an appeal under Rule 83(2) even though the deceased was never made a party to the appeal before his death
- 2.Whether Rule 83(2) is dependent on Rule 77 (service of notice of appeal on the legal representatives of a deceased intended respondent)
- 3.Whether the applicants, as intended respondents, were required to file a notice of appeal in order to be joined
Key legal issues
#Joinder of legal representatives of a deceased respondent under Rule 83(2)
The application to join the legal representatives of the deceased first defendant as respondents in the appeal must succeed; Rule 83(2) operates independently of Rule 77
The deceased gave evidence but died after judgment was reserved. Rule 83(2) enables legal representatives to be made a party in place of the deceased. Rule 77 merely deems a notice of appeal competent despite the intended respondent's death and requires service on the legal representatives; it does not govern or condition the joinder power under Rule 83(2). The appellant was directed to serve the notice of appeal and record of appeal within fixed periods.
Whether a notice of appeal or prior joinder of the deceased is a precondition
Neither objection was sustainable: the applicants as intended respondents need not file a notice of appeal, and Rule 83(2) imposes no precondition that the deceased have been a party to the appeal before death
The court examined the two objections raised against the application. Both were rejected as inconsistent with the clear provisions of Rule 83(2), which contains no such preconditions. The applicants' status as legal representatives was not disputed, and the court noted its earlier ruling of 18th June, 1999 had already requested the appellant to serve the notice of appeal on the applicants.
Legal principles established
#- Rule 83(2) permits the legal representatives of a deceased party to be joined in place of the deceased, and this power is not dependent on Rule 77
- There is no precondition under Rule 83(2) that the deceased must have been made a party to the appeal before his death before his legal representatives can be joined
- Intended respondents seeking joinder as legal representatives of a deceased party are not required to file a notice of appeal
Court orders
#- 1.The applicants are joined in their capacities as legal representatives of the deceased, Wilson Gitu Njuguna, as respondents in the appeal from the judgment of Tanui, J. delivered on 11th July, 1997 in Civil Case No.110 of 1988 (O.S)
- 2.The applicants shall be served with the Notice of Appeal by the appellant within 7 days from the date of the ruling
- 3.The applicants shall be served with a Record of Appeal within 30 days from the service of the Notice of Appeal
- 4.No order as to costs in respect of the present application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Civil Case No. 110 of 1988 (O.S.)
- Jurisdiction invoked
- Rule 83(2) of the Court of Appeal Rules (application to join legal representatives of a deceased party in place of the deceased)
Relief refused
#Costs of the application against the appellant
Although the court found the appellant had taken an obstinate stand in failing to serve the notice of appeal, it declined to award costs
Costs
No order as to costs in respect of the present application (each party to bear their own costs of the application).
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.
In the result, the application succeeds and the applicants are hereby joined in their capacities as legal representatives of the deceased, Wilson Gitu Njuguna, as respondents in the appeal from the judgment of Tanui, J. delivered on 11th July, 1997 in Civil Case No.110 of 1988 (O.S)
The application which is brought under Rule 83(2) enables the legal representatives of the deceased which the applicants undoubtedly are, to be made a party in place of the deceased.
This Rule is not dependent on Rule 77 which merely provides that a Notice of Appeal shall not be incompetent by reason only that the intended respondent is dead at the time when it was lodged
I will, however, make no order as to costs in respect of the present application.
Issues in the judgment
#The judgment does not state the case number or citation of the present application, and the parties are not named in the copy provided (only the deceased, Wilson Gitu Njuguna, is named)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Waithaka Gitu & another v Samuel Ndungu Gitu & 3 others [2000] KECA 53 (KLR)", Case Analysis (2000). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/53/eng@2000-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.