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Court of AppealDismissedCivil Appeal No. 323 of 2009· [2015] KECA 640 (KLR)

Beatrice Michere Mugo v James Muriithi Gichura [2015] KECA 640 (KLR)

Court of Appeal of Kenya
17 June 2015
PWPhilip WakiRNR.N. NambuyePKPatrick Kiage
1,835 words in judgment
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The bottom line

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You cannot substitute a deceased party in a Kenyan appeal until someone obtains a grant of representation — otherwise your application will fail as premature.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Nyeri (Nambuye, JA, sitting with Waki and Kiage, JJA) in an appeal against a High Court decision of Kasango, J dated 14 October 2008. The appellant Beatrice Michere Mugo sought leave to extend time and to substitute the deceased respondent, James Muriithi Gichura, with his widow and son, or alternatively the Public Trustee, so that her pending applications and appeal could proceed. Her earlier application for a supplementary record of appeal had been dismissed for want of prosecution in 2010, and two subsequent hearings were adjourned for non-substitution of the deceased respondent, who died on 30 August 2011. The respondents opposed, contending that none of the proposed substitutes held letters of representation for the estate. Applying Rule 99 of the Court of Appeal Rules and the principles in Morjaria v Abdalla, the court held that only a person duly appointed a legal representative by the High Court under the Law of Succession Act may be substituted for a deceased party; the proposed substitutes and the Public Trustee lacked such capacity. The applicant's proper course was to seek a citation under section 47 of the Law of Succession Act and rule 22 of the Probate and Administration Rules for a limited grant. The application was dismissed as premature, with costs in the cause. The main appeal itself was not decided.

Key legal issues

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01

Capacity of proposed substitutes for a deceased respondent

Holding

Only a person properly constituted as legal representative by the High Court under the Law of Succession Act may be substituted for a deceased party on appeal.

Reasoning

Rule 99 (formerly 96) provides that an appeal does not abate on death and the court shall cause the legal representative to be made a party. Drawing on Morjaria v Abdalla, the court held that despite the word 'shall', the rule only enables substitution of a person the High Court has appointed as legal representative; otherwise an incompetent person might be joined. None of the intended respondents, nor the Public Trustee, held any grant, so the application was premature.

p. 3
02

Correct procedural route where heirs refuse to take out representation

Holding

The applicant must seek a citation under section 47 of the Law of Succession Act and rule 22 of the Probate and Administration Rules to have a limited grant issued before seeking substitution.

Reasoning

The court accepted that the intended respondents had neglected to seek a grant, but held that the remedy lies in the applicant herself approaching the High Court by citation requiring the citees to accept representation limited to the pending appeal. Only after such nomination by a court of law may substitution be sought in the appellate court.

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Effect of mis-citing the applicable rule

Holding

Citing rule 96 instead of its renumbered successor rule 99 was an error that did not bar a merits determination, being curable under Article 159(2)(d).

Reasoning

The court noted the rule had been renumbered from 96 to 99 but, invoking the constitutional dictate of substantive justice, declined to penalise the litigant for the formal defect and proceeded to determine the application on its merits.

p. 2

Legal principles established

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  • Rule 99 enables the Court of Appeal to substitute a deceased party only with a person duly made a legal representative by the High Court under the Law of Succession Act; a purported substitution of an unappointed person cannot stand.
  • Where a party to an appeal dies, the proper course for the surviving party seeking progress of the appeal is to obtain a limited grant via citation under section 47 of the Law of Succession Act and rule 22 of the Probate and Administration Rules before applying for substitution.
  • A mis-citation of a rule of court does not disentitle a litigant to a merits decision, the defect being curable under Article 159(2)(d) of the Constitution.

Court orders

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  1. 1.The applicant's application for extension of time to substitute the deceased respondent and for substitution was declined as premature
  2. 2.Costs of the application were placed in the cause

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159(2)(d)
  • Court of Appeal RulesRule 54
  • Court of Appeal RulesRule 96 (now Rule 99)
  • Civil Procedure Act, Cap 21Section 2
  • Law of Succession ActSections 2, 47, 53, 54
  • Law of Succession ActRule 14 of the 5th Schedule
  • Probate and Administration RulesRule 22

Cases cited (1)

  • Morjaria versus Abdalla
    [1984] eKLR
On appeal from
High Court of Kenya at Nyeri
Nyeri H.C.C.A. No. 104 of 2001
Jurisdiction invoked
Rules 54 and 96 (now 99) of the Court of Appeal Rules and all enabling provisions of the law

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, "Beatrice Michere Mugo v James Muriithi Gichura [2015] KECA 640 (KLR)", Case Analysis (2015). Civil Appeal No. 323 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/640/eng@2015-06-17

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