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Court of AppealDismissedCivil Appeal No. 303 of 2000 (application dated 2nd February 2008)· [2008] KECA 27 (KLR)

Mwangi Kinyua v Waweru Kinyanjui & 3 Others [2008] KECA 27 (KLR)

Court of Appeal of Kenya
3 October 2008
SBS.E.O. Bosire
1,300 words in judgment
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The bottom line

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The Court of Appeal held that extending time cannot revive an appeal that has automatically lapsed after a party's death, and misleading affidavits kill applications outright.

What this practically means

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Executive summary

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Mwangi Kinyua, appellant in Civil Appeal No. 303 of 2000, applied by notice of motion dated 2nd February 2008 for extension of time under rule 4 of the Court of Appeal Rules to apply for substitution of the deceased respondent, Waweru Kinyanjui, under rule 96(1). Kinyanjui died on 29th August 2004 during the pendency of the appeal, and under rule 96(2) the appeal abated twelve months after his death. The applicant explained that the Public Trustee declined to apply for letters of administration because the estate had only liabilities, and the widow was unwilling to apply, so he obtained the grant himself, by which time the limitation period had expired - over four years having elapsed since the death. Counsel for the applicant argued that rule 4 permits extension of time before or after expiry of the prescribed period. The 3rd and 5th respondents opposed, contending the applicant was dilatory and that the supporting affidavit was defective: although deposed by 'Mwangi Kinyua', the annexed travel documents bore the name of one Peter Njoroge Kariuki. Bosire JA held that while the Court has jurisdiction under rule 4 to extend time both before and after expiry of the prescribed period, an extension of time does not, of itself, revive an appeal that has abated; unlike Order 23 rule 8 of the Civil Procedure Rules (deceased plaintiff cases), rule 96(2) makes no provision for revival, and the limitation is final. Further, applying ex parte Polignac, the misleading affidavit disentitled the applicant from having the merits examined. The application was dismissed with costs to the 3rd and 5th respondents.

Key legal issues

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01

Whether rule 4 extension of time can revive an abated appeal

Holding

The Court has discretion under rule 4 to extend time before or after expiry of the prescribed period, but extension of time does not revive an appeal that has already abated under rule 96(2). Unlike Order 23 of the Civil Procedure Rules (which, for a deceased plaintiff, expressly provides for revival of an abated suit), rule 96(2) contains an abatement provision with no corresponding revival provision, and the limitation period is final.

Reasoning

The Court juxtaposed rule 96(2) of the Court of Appeal Rules with Order 23 of the Civil Procedure Rules. Order 23 rule 8 permits revival of a suit abated by a deceased plaintiff's death, but provisions relating to deceased defendants contain no revival remedy, showing the abatement limitation is final. Rule 96(2) is analogous: abatement with no revival. Extending time for substitution of a deceased respondent in an abated appeal would therefore be futile.

p. 2
02

Effect of a misleading supporting affidavit

Holding

A party who relies on another person's travel documents while deposing in their own name intends to mislead the Court, and the Court has an inherent power to refuse to hear the application further.

Reasoning

The deponent was named as Mwangi Kinyua but the annexed passport and travel documents bore the name Njoroge Peter Kariuki, with an explanation that the applicant was abroad. The Court, applying the principle in ex parte Polignac, found the applicant was relying on another person's documents to mislead the Court and treated this as disentitling the application irrespective of its merits.

p. 2
03

Abatement of appeal on death of a respondent

Holding

Under rule 96(2) of the Court of Appeal Rules, an appeal abates automatically twelve months after the death of a respondent if no application for substitution is made within that period.

Reasoning

Waweru Kinyanjui died on 29th August 2004 during the pendency of the appeal; by dint of rule 96(2) the appeal abated on expiry of twelve months from the date of death. The applicant's explanation for the delay was the Public Trustee's refusal to apply for letters of administration and the widow's unwillingness, but the Court found no basis for exercising its discretion given the abatement and the misleading affidavit.

p. 1

Legal principles established

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  • Where a supporting affidavit on an ex parte or interlocutory application is not candid and is calculated to mislead the Court, the Court may refuse to examine the merits of the application.
  • An extension of time under rule 4 of the Court of Appeal Rules does not, of itself, revive an appeal that has abated under rule 96(2), which makes no provision for revival.

Court orders

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  1. 1.The applicant's application dated 2nd February 2008 is dismissed
  2. 2.Costs of the application awarded to the 3rd and 5th respondents

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 96(1)
  • Court of Appeal Rulesrule 96(2)
  • Civil Procedure RulesOrder 23 rule 8(1) and (2)
  • Civil Procedure RulesOrder 23 rule 4(3)

Cases cited (1)

  • The King v. The General Commissioners for the Purpose of the Income Tax for the District of Kensington ex parte Princes Edmond de Polignac
    [1917] 1 KB 485
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (inherent discretion to extend time)

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, "Mwangi Kinyua v Waweru Kinyanjui & 3 Others [2008] KECA 27 (KLR)", Case Analysis (2008). Civil Appeal No. 303 of 2000 (application dated 2nd February 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/27/eng@2008-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.