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Court of AppealDismissedCivil Appeal No. 8 of 2007· [2010] KECA 278 (KLR)

Mary Wanjiru Njuguna v Hezekiah Mathara [2010] KECA 278 (KLR)

Court of Appeal of Kenya
21 May 2010
DAD. K. S. Aganyanya
841 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed an appeal dies if a deceased party's replacement isn't applied for within twelve months of death.

What this practically means

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Executive summary

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This was a ruling of the Court of Appeal at Nairobi, delivered by Aganyanya, JA, on a notice of motion dated 28th July 2009 in Civil Appeal No. 8 of 2007. The applicant, Mary Wanjiku Njuguna, the legal representative of the deceased appellant who died on 6th July 2008, sought leave to amend the record of appeal by substituting herself for the deceased appellant and to file the amended record under rule 44(2) of the Court of Appeal Rules, with costs to abide the appeal. The respondent's legal representative opposed, contending that the appeal had abated because the application was not made within twelve months of death as required by rule 96(2). The court reproduced rules 96(1) and 96(2) and held that the word 'shall' renders the twelve-month requirement strict and mandatory. It declined to apply the inherent jurisdiction under sections 3A and 3B of Cap. 9 to cure the default, holding those provisions cannot displace an existing rule requiring strict compliance, though they may be used, for instance, to ignore the form in which deceased parties are cited. The court observed that a properly framed application explaining the 22-day delay might have been considered, but this application did not qualify. The motion was dismissed with no order for costs. The ruling binds lower courts to treat rule 96(2) as mandatory.

Key legal issues

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01

Whether an appeal abates where no application for substitution is made within twelve months of a party's death

Holding

The appeal abated automatically at the expiry of twelve months from the death because rule 96(2) is mandatory

Reasoning

Rule 96(1) provides that an appeal shall not abate on death but the legal representative must be joined on application; sub-rule (2) requires such application within twelve months. The deceased appellant died on 6th July 2008 and the application was filed on 28th July 2009, within twelve months, but the Court treated the appeal as having abated at the end of the twelve-month period, using 'shall' as mandatory.

p. 2
02

Whether sections 3A and 3B of Cap. 9 could be invoked to excuse non-compliance with rule 96(2)

Holding

The inherent jurisdiction does not apply where an existing rule requires strict compliance, though it may be used for matters such as the form in which parties are cited

Reasoning

The court held that where there is an existing rule whose wording requires strict compliance, the overriding-objective provisions in sections 3A and 3B cannot displace it. The sections may properly be applied, for example, to ignore the form in which parties are cited where deceased parties are named, but not to revive an abated appeal absent a proper application with a justified explanation for the delay.

p. 2

Legal principles established

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  • Rule 96(2) of the Court of Appeal Rules is mandatory: if no application to join the legal representative of a deceased appellant or respondent is made within twelve months of death, the appeal abates and cannot be saved by the inherent jurisdiction under sections 3A and 3B of Cap. 9

Court orders

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  1. 1.The notice of motion dated 28th July 2009 seeking leave to amend the record of appeal and substitute the legal representative was dismissed
  2. 2.No order for costs

Authorities

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Legislation

  • Law of Succession Actsection 54
  • Civil Procedure Rules (Cap. 9, Laws of Kenya - Rules of Court)sections 3A and 3B
  • Court of Appeal Rulesrule 96(1) and (2); rule 44(2)
  • Constitution of Kenyanull
On appeal from
High Court
null
Jurisdiction invoked
Court of Appeal Rules (Rule 96; Rule 44(2)); inherent jurisdiction under sections 3A and 3B of the Appellate Jurisdiction Act (Cap. 9)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mary Wanjiru Njuguna v Hezekiah Mathara [2010] KECA 278 (KLR)", Case Analysis (2010). Civil Appeal No. 8 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/278/eng@2010-05-21

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