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Court of AppealDismissedCivil Appeal No. 90 of 2010 (application)· [2016] KECA 115 (KLR)

Joseph Njogu Ngoya v Lucy Njeri Njogu [2016] KECA 115 (KLR)

Court of Appeal of Kenya
4 November 2016
JOJ. Otieno-Odek
1,634 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed a man's attempt to revive his abated appeal because only a deceased party's legal representative, not an interested relative, can apply.

What this practically means

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Executive summary

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This was an application before a single judge of the Court of Appeal, Nairobi, by Joseph Njogu Njoya seeking substitution of the administrators of the estate of Lucy Njeri Njogu (his estranged wife and respondent in Civil Appeal No. 90 of 2010) as respondents, extension of time to apply for substitution, and revival of the appeal, which had abated on 15th November 2015 for lack of substitution within twelve months of her death. The applicant relied on Rules 4, 16 and 99 of the Court of Appeal Rules, 2010 and Sections 3A and 3B of the Appellate Jurisdiction Act, invoking Article 159 of the Constitution against undue reliance on technicalities. The administrators opposed, contending that under Rule 99(1) only an interested person acting within twelve months could seek substitution, that the appeal had abated as a matter of law, and that under Rule 99(3) only the legal representative could seek revival - a capacity the applicant lacked. The Court acknowledged, following Kezia Wambui Mwaura, that Rule 99(3) now empowers it to revive abated appeals where sufficient cause is shown, overruling older authorities under the repealed rule 96(2). However, it held that this power is reserved to the legal representative of a deceased party. Since the applicant held no grant of representation, the application was incompetent. The Amended Notice of Motion dated 31st August 2016 was dismissed with costs. The decision below was not disturbed; the applicant remains at liberty, in effect, only through the administrators themselves.

Key legal issues

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01

Competence of a Rule 99(3) application by a non-legal-representative

Holding

The application is incompetent because the applicant is neither the legal representative nor an administrator of the estate of the deceased.

Reasoning

Rule 99(3) confines applications for revival of an abated appeal to persons claiming to be the legal representative of a deceased party. Although the applicant is the father of the joint administrators, he holds no grant of representation. The authorities relied upon, including Kezia Wambui Mwaura and Issa Masudi Mwabumba, all featured applicants who were legal representatives, distinguishing the present case.

p. 3
02

Jurisdiction to revive an abated appeal under the 2010 Rules

Holding

Rule 99(3), introduced by the Court of Appeal Rules 2010, confers jurisdiction on the Court to revive an abated appeal if sufficient cause is shown, but only at the suit of the legal representative.

Reasoning

The Court endorsed the decision in Kezia Wambui Mwaura that older authorities decided under the repealed rule 96(2) no longer bind, since the 2010 Rules introduced sub-rule 99(3) granting power to revive abated appeals. However, that jurisdiction is exercisable only where the applicant is the legal representative of the deceased party.

p. 3

Legal principles established

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  • Only the legal representative of a deceased party to an appeal may apply under Rule 99(3) for revival of an appeal that has abated
  • An application for substitution by an interested person must be made within 12 months of the death of the deceased, failing which the appeal abates as a matter of law

Court orders

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  1. 1.The Amended Notice of Motion dated 31st August 2016 be and is hereby dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Appellate Jurisdiction ActSections 3A, 3B
  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 16
  • Court of Appeal Rules, 2010Rule 99(1), (2) and (3)

Cases cited (6)

  • Samuel Nyoike Nduati -v- R & Another
    (2007) eKLR
  • Kezia Wambui Mwaura & Another -v- Clement J. M. Kariuki & 4 Others
    (2016) eKLR
  • Peterson Gichohi -v- Maina Johana Miano alias Joseph Miana Miano
    (2016) eKLR
  • Charles Mbwika Musee -v- Settlement Fund Trustees & Mwangangi Nthanga Nguyo
    Civil Appeal (Application) No. 192 of 2004
  • Pauline Wambui Ngari & Another -v- James Chege
    Civil Appeal (Application) No. 123 of 2005
  • Issa Masudi Mwabumba -v- Alice Kavenya Mutunga & 4 Others
    (2012) eKLR
On appeal from
High Court of Kenya
HCCC No. 12 of 2006
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 4, 16, 99(1) & (3) of the Court of Appeal Rules, 2010

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, "Joseph Njogu Ngoya v Lucy Njeri Njogu [2016] KECA 115 (KLR)", Case Analysis (2016). Civil Appeal No. 90 of 2010 (application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/115/eng@2016-11-04

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