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Court of AppealDismissedCivil Appeal (Application) No. 192 of 2004· [2015] KECA 963 (KLR)

Charles Mbwika Musee v Settlement Fund Trustees & Another

Court of Appeal of Kenya
30 January 2015
WKW. Karanja
834 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling by Karanja, J.A. in chambers on the appellant's motion dated 25 September 2013 seeking extension of time to file and serve an application to substitute the deceased 2nd respondent, Mwangangi Nthanga Nguyo. The appellant deposed that he learnt of the death only in early 2013 and had not identified the estate's legal representative. The estate opposed, contending the appeal had abated under Rule 99(2) of the Court of Appeal Rules and that the five-year delay was inordinate and unexplained. The court framed the decisive question as what time the applicant sought to extend: if he sought extension of the twelve-month period in Rule 99(2), the court had no power to grant it, because that rule is self-executing - the appeal 'SHALL abate' if no application is made within twelve months of death - and falls outside the ambit of Rule 4. The court agreed with respondent's counsel that the proper course was a citation to appoint a legal representative within the twelve-month window to avoid abatement. It further found the appellant lacked diligence, having taken some nine years from filing and five years from death even to discover the death, and still not having identified the widow or son he wished to substitute. The application was dismissed with costs to the 2nd respondent.

Key legal issues

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01

Whether the Court of Appeal can extend the 12-month substitution period in Rule 99(2)

Holding

No - the rule is self-executing and falls outside Rule 4's extension power

Reasoning

Rule 99(2) mandatorily provides that if no application is made within twelve months of death, the appeal shall abate. Because the abatement occurs automatically by operation of the rule, the general extension power in Rule 4 cannot be invoked to revive or prevent the abatement after the fact.

p. 2
02

What the applicant should have done to avoid abatement

Holding

Move the court by citation for appointment of a legal representative within twelve months of death

Reasoning

The court indicated the correct course was a citation proceedings to have a person such as the widow appointed as legal representative for substitution purposes within the twelve-month window, thereby preventing abatement rather than seeking to cure it afterwards.

p. 2
03

Diligence of the applicant

Holding

The applicant was not diligent; delay of about five years unexplained

Reasoning

Although the appeal was filed in 2004 and the respondent died four years later, the appellant claimed discovery of the death only five years after it, and even at the hearing had not identified the deceased's widow or son for substitution, painting a picture of a non-diligent litigant.

p. 2

Legal principles established

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  • Rule 99(2) is self-executing; once 12 months from death lapse without an application under sub-rule (1), the appeal abates and Rule 4 cannot extend that period
  • Only the legal representative of a deceased party may apply for revival of an abated appeal under Rule 99(3)

Court orders

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  1. 1.Application dismissed with costs to the 2nd respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 99(1)
  • Court of Appeal RulesRule 99(2)
  • Court of Appeal RulesRule 99(3)
On appeal from
High Court of Kenya at Machakos
HCCC No. 220 of 1996
Jurisdiction invoked
Rule 4, Court of Appeal Rules (application to extend time)

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, "Charles Mbwika Musee v Settlement Fund Trustees & Another", Case Analysis (2015). Civil Appeal (Application) No. 192 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/963/eng@2015-01-30

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