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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNot stated in the judgment

Henry Waithaka Gitu & another v Samuel Ndungu Gitu & 3 others [2000] KECA 53 (KLR)

Court of Appeal of Kenya
20 March 2000
433 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu delivered by Akiwumi, JA on 20th March, 2000, determining an application by the legal representatives of Wilson Gitu Njuguna, the deceased first defendant in Civil Case No. 110 of 1988 (O.S.) before Tanui, J., whose judgment was delivered on 11th July, 1997. The deceased had given evidence but died before judgment. The applicants sought to be joined as respondents in an appeal filed against that judgment. The court allowed the application, holding that Rule 83(2) of the Court of Appeal Rules enables the legal representatives of a deceased party to be made a party in place of the deceased, and that this power is independent of Rule 77, which merely provides that a notice of appeal is not incompetent merely because the intended respondent was dead when it was lodged and requires service on the legal representatives. The court rejected the objections that the applicants, as intended respondents, should have filed a notice of appeal, and that they could only be joined if the deceased had been made a party to the appeal before his death, finding no such precondition in Rule 83(2). The applicants were joined as respondents; the appellant was ordered to serve the notice of appeal within 7 days and a record of appeal within 30 days of that service. Although the court criticised the appellant's obstinate failure to serve the notice earlier, it made no order as to costs. No authorities were cited in the ruling.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 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. 3.Whether the applicants, as intended respondents, were required to file a notice of appeal in order to be joined

Key legal issues

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01

Joinder of legal representatives of a deceased respondent under Rule 83(2)

Holding

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

Reasoning

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.

p. 2
02

Whether a notice of appeal or prior joinder of the deceased is a precondition

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.The applicants shall be served with the Notice of Appeal by the appellant within 7 days from the date of the ruling
  3. 3.The applicants shall be served with a Record of Appeal within 30 days from the service of the Notice of Appeal
  4. 4.No order as to costs in respect of the present application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 3

Costs

No order as to costs in respect of the present application (each party to bear their own costs of the application).

Quotable passages

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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)
p. 2Final orders - joinder granted
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.
p. 2Scope of Rule 83(2)
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
p. 2Relationship between Rule 83(2) and Rule 77
I will, however, make no order as to costs in respect of the present application.
p. 3Costs

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.