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Court of AppealAllowedCivil Application No. 5 of 2011· [2015] KECA 325 (KLR)

Susan Wamaitha & another v Mary Njeri Kimani & another [2015] KECA 325 (KLR)

Court of Appeal
16 October 2015
GKG. B. M. KariukiFSF. SichaleSKS. ole Kantai
817 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a pending appeal application does not die with a party; heirs can step in within 12 months.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal at Nairobi, coram G.B.M. Kariuki, Sichale and ole Kantai, JJ.A, in Civil Application No. 5 of 2011. Susan Wamaitha, daughter of the late Naomi Njoki Kimani who died on 4 March 2014, sought to be substituted for her deceased mother as applicant in a pending notice of motion dated 18 January 2011 seeking stay of execution under rule 5(2)(b) of the Court of Appeal Rules. The underlying stay application targeted the ruling of Kalpana Rawal, J, delivered on 23 February 2009 in Nairobi High Court Succession Cause No. 2165 of 1996, in which the deceased was given 30 days to account for rent collected in the estate of Kimani Wanyoro (deceased) failing which property L.R. 36/11/222 at Eastleigh, Nairobi would be sold. The deceased had lodged a notice of appeal dated 31 May 2010. The applicant obtained a limited grant ad litem on 2 February 2015 and filed the substitution application on 3 March 2015, a day before the 12-month abatement period under Rule 51(2) elapsed. Although served, neither respondent's advocates appeared. The Court, applying Rules 51(2), 51(4) and 99, held that applications do not abate on death and that the legal representative may be joined, allowed the substitution, and ordered each party to bear its own costs. The ruling was delivered on 16 October 2015 at Nairobi.

Key legal issues

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01

Whether substitution of a deceased applicant in a pending rule 5(2)(b) stay application should be ordered

Holding

The Court allowed the substitution, being satisfied it was a proper case, noting the application was lodged a day before the 12-month abatement period under Rule 51(2) expired.

Reasoning

The deceased had lodged a notice of appeal and a rule 5(2)(b) stay application before her death on 4 March 2014. Under Rule 51(2), such applications do not abate on death; the legal representative may be joined on the application of any interested person within 12 months. The applicant obtained a limited grant ad litem on 2 February 2015 and lodged the substitution application on 3 March 2015, one day before abatement. The respondents were served but did not appear. The Court found substitution proper.

p. 2

Legal principles established

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  • Applications in the Court of Appeal do not abate on the death of an applicant or respondent; the Court must, on the application of any interested person, cause the legal representative of the deceased to be made a party in place of the deceased, failing which the application abates after 12 months.
  • The Court has discretionary power to revive an application that has abated where sufficient cause is shown.
  • An appeal does not abate on the death of an appellant or respondent, and the Court may on the application of any interested person substitute the legal representative of the deceased.

Court orders

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  1. 1.Order for substitution of Susan Wamaitha for the deceased applicant Naomi Njoki Kimani as applicant and intending appellant in the notice of motion dated 18th February 2015
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 51(2)
  • Court of Appeal RulesRule 51(4)
  • Court of Appeal RulesRule 99
On appeal from
High Court of Kenya at Nairobi
H.C. Succession Cause No. 2165 of 1996
Jurisdiction invoked
Rule 51(2) of the Court of Appeal Rules (application for substitution in a pending application under rule 5(2)(b))

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, "Susan Wamaitha & another v Mary Njeri Kimani & another [2015] KECA 325 (KLR)", Case Analysis (2015). Civil Application No. 5 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/325/eng@2015-10-16

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