Kezia Wambui Mwaura & another v Clement J M Kariuki & 4 others [2016] KECA 734 (KLR)
The bottom line
#Kenya's Court of Appeal can revive an appeal that lapsed when a party died, if their representative acts promptly once aware.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to revive an abated appeal under the 2010 Rules
The Court has jurisdiction under rule 99(3) of the Court of Appeal Rules, 2010 to revive an appeal that has abated, provided sufficient cause is shown; prior authorities denying such power were decided under the repealed rule 96 and are no longer authoritative.
The respondents relied on authorities construing rule 96(2) of the retired Court of Appeal Rules, which denied the Court power to revive an abated appeal. The court held that those pronouncements lost authority when the former rules were repealed on 17th September 2010 and the new rule 99(3) was introduced expressly empowering revival upon proof of sufficient cause. Hence the argument that there was no competent appeal upon which the application could hinge was misplaced.
Whether the applicant showed sufficient cause for the delay
The applicant's explanation - that she was unaware of the pendency of the appeal and that the appeal had abated by the time she obtained the grants of representation, upon which she acted promptly - amounted to sufficient cause under rule 99(3).
The application was filed two years and four months after the death of the 1st appellant and one year and six months after the death of the 2nd appellant, outside the twelve-month period in rule 99(2). However, the court found that once the applicant became aware of the appeal she took the necessary steps to obtain the requisite documents for the substitution application, and that no prejudice was shown by the respondents, so the delay was not deliberate and sufficient cause was established.
Legal principles established
#- Rule 99(3) of the Court of Appeal Rules, 2010 confers jurisdiction on the Court to revive an appeal that has abated, where sufficient cause is shown; earlier authorities on the retired rule 96 no longer govern.
- Where a legal representative, upon becoming aware of a pending appeal, promptly takes steps to obtain the requisite documents and seek substitution, that constitutes sufficient cause despite delay beyond the twelve-month period.
Court orders
#- 1.The appellants to be substituted with their personal representative, Grace Wanjiku Karanja
- 2.The abated appeal to be revived
- 3.Costs of the application to abide the outcome of the appeal
- Jurisdiction invoked
- Rule 99(3) of the Court of Appeal Rules, 2010 (application for substitution and revival of an abated appeal under rules 42(1) and 99)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kezia Wambui Mwaura & another v Clement J M Kariuki & 4 others [2016] KECA 734 (KLR)", Case Analysis (2016). Civil Application (as printed in the judgment - motion on notice dated 9th November 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/734/eng@2016-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.